HomeMy WebLinkAboutCIM/Huntington, LLC - aka CIM Group, LLC - 2009-08-03AGREEMENT RE DISPOSITION AND DEVELOPMENT AGREEMENT
AND OTHER AGREEMENTS
THIS AGREEMENT RE DISPOSITION AND DEVELOPMENT AGREEMENT
AND OTHER AGREEMENTS (this "Agreement"). is made and entered into as of August 28,
2009, by and between CINUHUNTINGTON, LLC, a California limited liability company
("CIM"), COMERICA BAND, and its successor and assigns, in its capacity as administrative
agent ("Bank"), the CITY OF HUNTINGTON BEACH, a California charter city ("City"),
and REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public
body, corporate and public ("Agency") with reference to the following Recitals:
RECITALS
A. Agency and CIM Group, LLC, as developer, entered into that certain Disposition
and Development Agreement dated as of June 17, 1999 as amended by (i) an Implementation
Agreement executed on April 6, 2000, (ii) a Second Implementation Agreement dated. as of
March 5, 2001, (iii) a Third Implementation Agreement dated as of October 30, 2002, (iv) a
Fourth Implementation Agreement dated as of September 15, 2003, (v) a Fifth Implementation
Agreement dated as of July 19, 2004, and (vi) a Sixth Implementation Agreement dated as of
November 3, 2008 (collectively, the "Development Agreement"). The Development
Agreement was assigned by CIM Group, LLC to CIM pursuant to the Third Implementation
Agreement. The Development Agreement provides for, among other things, (i) the development
of a project consisting of a full -service hotel, retail space, office space and a public parking
garage (collectively, the "Improvements") on certain real property located in the City of
Huntington Beach, County of Orange, State of California (the "Property"), and (ii) the payment
to CIM, under certain circumstances, of the "Agency Obligation" (as defined in the Second
Revised Schedule of Feasibility Gap Payments to the Sixth Implementation Agreement)
(collectively, the "Agency Payments").
B. Bank, in its capacity as administrative agent, for certain lenders ("Lenders"),
and CIM 2009 CM Portfolio, LP, a California limited partnership ("Borrower") are parties to
that certain Loan Agreement dated as of even date herewith (the "Loan Agreement"), pursuant
to which Bank and such Lenders have agreed to make a loan to Borrower (the "Loan"). The
Loan is evidenced by the documents set forth on Schedule 1 attached hereto (the "Loan
Documents").
C. All of the membership interests in CIM have been transferred to Borrower.
D. CIM has guaranteed Borrower's obligations under the Loan Agreement and other
Loan Documents pursuant to a Secured Guaranty dated of even date with the Loan Agreement
("Secured Guaranty"). The Secured Guaranty is secured by a Deed of Trust (the "Deed of
Trust") and a Security Agreement of even date with the Secured Guaranty executed by CIM,
pursuant to which CIM grants to Bank a security interest in all assets of CIM. The Deed of Trust
and the Security Agreement are collectively called herein, the "Security Documents."
E. CIM and the City have entered into that certain Operating Agreement for The
Strand Public Parking Structure, dated as of November 25, 2008, and recorded in the Official
600830958v6 1 Agreement re Disposition and Development Agreement
And Other Agreements
Records of Orange County, California ("Official Records") on January 15, 2009 as Document
No. 2009000018383 ("Operating Agreement"). The Operating Agreement contemplates
certain payments to CIM as more particularly set forth in Section 7(c)3(b) of the Operating
Agreement (i.e., fifty percent (50%) of any Shared Parking Revenues [as defined in the
Operating Agreement] actually received for the previous ninety (90) days and deposited into the
Parking Revenue — Strand Account [as defined in the Operating Agreement] as calculated by the
City) (the "Parking Payments").
F. Agency and CIM entered into that certain Agreement Containing Covenants
Affecting Real Property dated as of June 23, 2004, and recorded in the Official Records on
June 25, 2004 as Document No. 2004000580586, as amended by that certain First Amendment
to Agreement Containing Covenants Affecting Real Property dated as of November 3, 2008, and
recorded in the Official Records on November 21, 2008 as Document No. 2008000544606
(collectively, the "Covenant Agreement").
G. CIM acquired the Property pursuant to a Grant Deed dated as of June 23, 2004,
and recorded in the Official Records on June 25, 2004 as Document No. 2004000580585 (the
"Agency Deed").
H. The Agency Deed and certain of the other Agency Documents (defined below)
provide for the Agency's option to re-enter to take possession of the Property and revest title to
the Property in the Agency (collectively, the "Reverter"), prior to the recordation of a Release
of Construction Covenants. A Release of Construction Covenants dated August 17, 2009 was
duly executed, acknowledged and recorded by Agency on September 10, 2009 in the Official
Records, as Document No. 2009000483454 (the "Release of Construction Covenants").
I. City, Agency, CIM and Delores L. Cracchiolo and Salvator W. Cracchiolo, as
trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and
Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003, entered
into that certain Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal
Easement dated as of February 3, 2009 and recorded in the Official Records on February 3, 2009
as Document No. 2009000047214 (the "CC&Rs").
J. The Development Agreement, the Covenant Agreement, the Agency Deed and the
CC&Rs are collectively called herein, the "Agency Documents:'
K. As a condition to the effectiveness of the Loan Agreement and as security for
CIM's obligations under the Secured Guaranty, Bank has required that (i) CIM assign all of its
rights under the Agency Documents to Bank (including without limitation its rights to receive the
Agency Payments) and assign all of its rights to Bank to receive the Parking Payments subject to
the terms and conditions set forth below, and (ii) Agency and City execute and deliver this
Agreement to (A) confirm the parties' understanding of the obligations with respect to the
Agency Documents, the Operating Agreement, the Agency Payments, and the Parking Payments,
(B) consent to the assignments contained in this Agreement, and (C) certify the status of the
Agency Documents and the Operating Agreement as of the date hereof.
600830958v6 2 Agreement re Disposition and Development Agreement
And Other Agreements
NOW, THEREFORE, in consideration of the foregoing Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement agree as follows:
1. Agreements of CIM.
(a) To secure the obligations of CIM under the Secured Guaranty, CIM hereby
assigns to Bank all of its right, title and interest, now or hereafter arising, in and to the Agency
Documents; provided that so long as no Default or Event of Default (as defined in the Loan
Documents) has occurred and is continuing under the Loan Documents, and subject to
Section 2(d) below, CIM shall be entitled to the benefits accorded to it and to exercise all of its
rights and privileges under the Agency Documents. To secure the obligations of CIM under the
Secured Guaranty, CIM hereby assigns to Bank all of its right, title and interest, now or hereafter
arising, in and to the Agency Payments and Parking Payments, whether or not a Default or Event
of Default exists under the Loan Documents. In no event shall anything in this Agreement be
deemed to release CIM of its obligations under the Agency Documents or Operating Agreement,
nor does Bank assume any of such obligations.
(b) • CIM agrees that it shall not, cancel, terminate, modify or amend any of the
Agency Documents or the Operating Agreement without Bank's prior written consent.
(c) CIM represents, warrants and covenants that, it has not sold, assigned, transferred,
mortgaged or pledged its interest in the Development Agreement, any of the other Agency
Documents, the Agency Payments, the Operating Agreement or the Parking Payments. CIM
agrees that it shall not sell, assign, transfer, mortgage or pledge its interest in the Development
Agreement, any of the other Agency Documents, the Agency Payments, the Parking Payments or
any part thereof, except to the extent permitted under the Loan Documents and the relevant
document or as otherwise consented to by Bank, City or Agency, as applicable.
(d) CIM agrees to execute and deliver to Bank, City and Agency, at any time or times
during which this Agreement is in effect, such further instruments as Bank, Agency or City
reasonably deems necessary to make effective or implement the assignment of CIM's rights, and
CIM's covenants hereunder, in a manner consistent with the terms of the relevant document(s).
2. Agreements and Certifications of Agency and City.
(a) Agency consents to the recordation of the Deed of Trust, as a lien on the Property.
Agency acknowledges and agrees that the Deed of Trust does not satisfy all conditions in Section
317 of the Development Agreement. To the extent that such conditions are not satisfied with
respect to the Deed of Trust and other Loan Documents, such requirements are hereby waived as
to the Deed of Trust and other Loan Documents.
(b) Agency consents to the collateral assignment by CIM of the Agency Documents
and agrees that Agency shall not modify or amend in any material respect any of the Agency
Documents without Bank's prior written consent (not to be unreasonably withheld, conditioned
or delayed). In addition, except in the event of an uncured default under the Development
Agreement (subject to the Bank's cure rights under Section 317.1 of the Development
600830958v6 3 Agreement re Disposition and Development Agreement
And Other Agreements
Agreement), Agency agrees that it shall not cancel or terminate the Development Agreement
without Bank's prior written consent.
(c) Agency and City agree to execute and deliver to Bank (at the sole cost and
expense of CIM), at any time or times during which this Agreement is in effect, such further
instruments as Bank reasonably deems necessary to make effective or implement the assignment
of CIM's rights, and CIM's covenants hereunder, in a manner consistent with the terms of the
Agency Documents or the Operating Agreement, as the case may be, and provided further that
the form and content of such further instruments shall be reasonably approved by Agency or
City, as applicable. All costs incurred by Agency and/or City to prepare, review and deliver such
further instruments pursuant to this paragraph shall be paid by CIM. With respect to each
request to the Agency or City to deliver such further instruments, CIM shall deliver a retainer to
Agency in the sum of Five Thousand Dollars ($5,000), to be applied to the payment of Agency
and/or City costs. The costs of Agency and/or City for consultants or legal services required for
providing such assistance shall be the actual sums billed to Agency and/or City for such
consulting or legal services. All such costs in excess of Five Thousand Dollars ($5,000) shall be
paid within ten (10) days after written request therefor by Agency or City. If such costs incurred
by Agency and/or City equal less than Five Thousand Dollars ($5,000), the balance shall be
refunded promptly following the delivery of such further instruments by Agency or City.
(d) Agency agrees to pay the Agency Payments to the deposit account specified in a
separate writing from Bank to Agency, without any further notice or authorization. Nothing in
this Agreement shall modify any provision of the Agency Documents, including, without
limitation, with respect to Agency's obligation to make the. Agency Payments or any of them,
and under no circumstances shall Agency have any obligation to make the Agency Payments or
any of them to Bank if it would not have had the obligation to make them to CIM. CIM shall
indemnify and hold harmless Agency and its members, officers, employees, agents, contractors
and consultants (collectively, "Agency Indemnified Parties') from and against any and all
liabilities, claims, costs or expenses (including reasonable attorneys' fees) arising from any
payment of the Agency Payments to Bank pursuant to this Agreement.
(e) City agrees to pay the Parking Payments to the deposit account specified in a
separate writing from Bank to City, without any further notice or authorization. Nothing in this
Agreement shall modify any provision of the Operating Agreement, including, without
limitation, with respect to City's obligation to make the Parking Payments or any of them, and
under no circumstances shall City have any obligation to make the Parking Payments or any of
them to Bank if it would not have had the obligation to make them to CIM. City consents to an
assignment of the Operating Agreement to Bank or its nominee upon the foreclosure of the Deed
of Trust or other transfer in connection with the enforcement of Bank's rights under the Deed of
Trust, provided that: (i) pursuant to Section 15 of the Operating Agreement, Bank or such
nominee has also acquired the Retail Parcel and/or the Hotel Parcel, and (ii) City approves the
entity that Bank or its nominee contracts with to perform the day-to-day parking operations,
which consent shall not be unreasonably withheld, delayed or conditioned. CIM shall indemnify
and hold harmless City and its members, officers, employees, agents, contractors and consultants
(collectively, "City Indemnified Parties") from and against any and all liabilities, claims, costs
or expenses (including reasonable attorneys' fees) arising from any payment of the Parking
Payments to Bank pursuant to this Agreement.
600830958v6 4 Agreement re Disposition and Development Agreement
And Other Agreements
(f) Agency hereby reaffirms the mortgagee protection provisions set forth in
Section 317.1 of the Development Agreement, and the same are incorporated herein by reference
in favor of Bank. Agency acknowledges and agrees that Bank and Lenders, collectively,
constitute a "Mortgagee" as that term is defined in Section 317.1 of the Development
Agreement. Without limiting the foregoing, performance rendered by Bank on behalf of Bank
and Lenders is without prejudice to Bank's rights against CIM under the Loan Documents. Any
one of Bank or Lenders is entitled to cure any default by CIM. Agency approves Bank or its
nominee as an owner of the Retail Parcel and/or the Hotel Parcel upon the foreclosure of the
Deed of Trust.
(g) Agency certifies that as of the date hereof, the Agency Documents are in full
force and effect, and that, to the knowledge of Agency, there are no defaults by CIM or events
which, with the giving of notice or lapse of time or both would, unless cured or waived, become
a default by CIM. From time to time, within twenty (20) business days following a request by
Bank, Agency shall deliver to Bank, a duly executed estoppel certificate from Agency certifying
that, except as set forth in such estoppel, the Agency Documents are in full force and effect, and
that there are no defaults by CIM or events which, with the giving of notice or lapse of time or
both would, unless cured or waived, become a default by CIM under the Agency Documents.
Agency certifies that its Executive Director shall have the right to provide any such certificates
on behalf of the Agency. Notwithstanding anything to the contrary in any of the Agency
Documents, all costs incurred by Agency to prepare, review and deliver such estoppel
certificates pursuant to this paragraph shall be paid by CIM. With respect to each request to the
Agency to deliver such an estoppel certificate, CIM shall deliver a retainer to Agency in the sum
of Five Thousand Dollars ($5,000), to be applied to the payment of Agency costs. The costs of
Agency for consultants or legal services required for providing such assistance shall be the actual
sums billed to Agency for such consulting or legal services. All such costs in excess of Five
Thousand Dollars ($5,000) shall be paid within ten (10) days after written request therefor by
Agency. If such costs incurred by Agency equal less than Five Thousand Dollars ($5,000), the
balance shall be refunded promptly following the delivery of such estoppel certificate by
Agency.
(h) City certifies that as of the date hereof, the Operating Agreement is in full force
and effect, and that, to the knowledge of City, there are no defaults by CIM or events which, with
the giving of notice or lapse of time or both would, unless cured or waived, become a default by
CIM. From time to time, within twenty (20) business days following a request by Bank, City
shall deliver to Bank, a duly executed estoppel certificate from City certifying that, except as set
forth in such estoppel, the Operating Agreement is in full force and effect, and that there are no
defaults by CIM or events which, with the giving of notice or lapse of time or both would, unless
cured or waived, become a default by CIM under the Operating Agreement. Notwithstanding
anything to the contrary in the Operating Agreement, all costs incurred by Agency and/or City to
prepare, review and deliver such estoppel certificates pursuant to this paragraph shall be paid by
CIM. With respect to each request to City to deliver such an estoppel certificate, CIM shall
deliver a retainer to Agency in the sum of Five Thousand Dollars ($5,000), to be applied to the
payment of Agency and/or City costs. The costs of Agency and/or City for consultants or legal
services required for providing such assistance shall be the actual sums billed to Agency and/or
City for such consulting or legal services. All such costs in excess of Five Thousand Dollars
($5,000) shall be paid within ten (10) days after written request therefor by City. If such costs
600830958v6 5 Agreement re Disposition and Development Agreement
And Other Agreements
incurred by the Agency and/or City equal less than Five Thousand Dollars ($5,000), the balance
shall be refunded promptly following the delivery of such estoppel certificate by City.
(i) The Construction Covenants in the Covenant Agreement have been satisfied as to
the Hotel and all retail space that is occupied.
0) Agency has approved the Hotel Management Agreement dated April 10, 2006, as
amended on October 29, 2008, by CIM and Joie de Vivre Hospitality, Inc., a California
corporation.
(k) Construction of all Improvements required by the Development Agreement have
been completed.
(1) Agency consents to the transfer of the membership interests in CIM to Borrower.
Agency agrees that such transfer does not violate any term or condition of the Agency
Documents. This shall in no way constitute Agency's consent to any future transfer.
3. Release of Construction Covenants. The Release of Construction Covenants is in full
force and effect. The Reverter has been terminated.
4. Miscellaneous.
(a) Notices. All notices and other communications under this Agreement are to be in
writing and sent to the addresses as set forth below. All such notices and other communications
shall be deemed sufficiently given or furnished if delivered by personal delivery, by courier, by
registered or certified United States mail, postage prepaid, or by facsimile (with a confirmatory
duplicate copy sent by first class United States mail). Any such notice or communication shall
be deemed to have been given and received either at the time of personal delivery, or in the case
of courier or mail, as of the date of first attempted delivery at the address and in the manner
provided herein, or in the case of facsimile, upon receipt; provided, however, that service of a
notice required by any applicable statute shall be considered complete when the requirements of
that statute are met. A new address for notice may be established by written notice to the other
parties; provided, however, that no address change will be effective until written notice thereof
actually is received by the party to whom such address change is sent. If any party fails to insert
an address, that failure shall constitute a designation of such party's last known address as the
address for such notice. This provision shall not be construed in any way to affect or impair any
waiver of notice or demand provided herein or to require giving of notice or demand to or upon
any person in any situation or for any reason.
To CIM: CIM/Huntington, LLC
c/o CIM Urban Real Estate Fund, LP
6922 Hollywood Blvd., Suite 900
Los Angeles, CA 90028
Attn.: Mr. Kelly Eppich
Fax: (323) 860-4901
600830958v6 6 Agreement re Disposition and Development Agreement
And Other Agreements
with a copy to: CIM/Huntington, LLC
6922 Hollywood Blvd., Suite 900
Hollywood, CA 90028
Attn: General Counsel
Fax: (323) 860-4901
And to: DLA Piper LLP
550 S. Hope Street, Suite 2300
Los Angeles, CA 90071
Attn: Michael Hamilton, Esq.
Fax: (213) 330-7536
To Bank: Comerica Bank
2000 Avenue of the Stars, Suite 210
Los Angeles, CA 90067
Attn: Philip Diorio
Fax: (310) 552-6012
with a copy to: Pillsbury Winthrop Shaw Pittman LLP
501 West Broadway, Suite 1100
San Diego, CA 92101
Attn: Angela M. Yates, Esq.
Fax: (619) 236-1995
To Agency: Redevelopment Agency of the City of Huntington Beach
P.O. Box 190
2000 Main Street
Huntington Beach, CA 92648
Attn: Executive Director
with a copy to: Redevelopment Agency of the City of Huntington Beach
P.O. Box 190
2000 Main Street
Huntington Beach, CA 92648
Attn: Agency General Counsel
To City: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Administrator
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: Director of Economic Development
600830958v6 7 Agreement re Disposition and Development Agreement
And Other Agreements
with a copy to: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: City Attorney
(b) No Waiver. No failure by Bank, Agency or City to exercise, and no delay by
Bank, Agency or City in exercising, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
(c) Attorney in Fact. Without limiting any other provision hereof, CIM hereby
irrevocably constitutes and appoints Bank as its attorney -in -fact, which power is coupled with an
interest, so that Bank shall have the right during the occurrence of a Default by CIM under the
Loan Documents, to demand, receive and enforce CIM's other rights with respect to the Agency
Documents, to give appropriate receipts, releases and satisfactions for and on behalf of CIM, and
to do any and all acts in the name of CIM or in the name of Bank with the same force and effect
as CIM could have done. Nothing herein is intended to modify or amend the rights of the parties
under Section 317.1 of the Development Agreement.
(d) Invalidity. A determination that any provision of this Agreement is unenforceable
or invalid shall not affect the enforceability or validity of any other provision of this Agreement
or the Loan Documents and a determination that the application of any provision of this
Agreement to any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons, entities or
circumstances.
(e) No Amendment. This Agreement may not be amended, modified or changed, nor
shall any waiver of any provision hereof be effective, except by a written instrument signed by
the party against whom enforcement of the waiver, amendment, change or modification is
sought.
(f) CIM Indemnity. CIM shall indemnify and hold harmless Bank, Agency
Indemnified Parties and City Indemnified Parties against any liabilities, claims, costs or expenses
(including reasonable attorneys' fees) incurred by Bank, Agency Indemnified Parties or City
Indemnified Parties as a result of CIM's breach or default under this Agreement or Bank's,
Agency's or City's exercise of its rights hereunder.
(g) Successors and Assi ns. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns, and shall inure to the benefit of Bank and its
successors and assigns. The parties acknowledge and agree that the Bank's successors and
assigns shall include all such successors and assigns permitted under the Loan Documents,
including without limitation any purchasers of the Property or any part thereof at a foreclosure
sale.
600830958v6 8 Agreement re Disposition and Development Agreement
And Other Agreements
(h) Termination. Upon payment of the Loan in full and satisfaction of all of
Borrower's obligations under the Loan Documents, this Agreement shall automatically
terminate. CIM agrees to notify Agency and City of the termination of this Agreement within
ten (10) business days following the occurrence thereof.
(i) Counterparts. This Agreement may be executed in several counterparts, all of
which are identical, and all of which counterparts together shall constitute one and the same
instrument.
0) Governing Law. This Agreement and its validity, enforcement and interpretation
shall be governed by California law (without regard to any conflict of laws principles) and
applicable United States federal law.
(k) Deed of Trust. In accordance with Section 317 of the Development Agreement,
Bank acknowledges and agrees that the Deed of Trust and the rights of any holder or person
acquiring title through or following foreclosure of the Deed of Trust are subordinate and subject
to the provisions of the Agency Documents and the Operating Agreement. Nothing herein or in
any Loan Document is intended to or does amend any provision of the Agency Documents or the
Operating Agreement (including without limitation any provision providing for Agency's
approval over any of the Loan Documents, or any amendment thereto), or any right or remedy of
Agency or City thereunder, and Agency consents to the Loan Documents.
(1) Insurance. The parties acknowledge and agree that any and all insurance required
under the Deed of Trust is an obligation of CIM exclusively, and is not a common area expense
or other cost under any agreement to which the Agency or the City is a party.
(Signatures on Following Pages)
600830958v6 9 Agreement re Disposition and Development Agreement
And Other Agreements
IN WITNESS WHEREOF, CIM, Bank, Agency and City have caused this Agreement to
be executed as of the date and year first set forth herein.
CIM:
CIMMHUNTINGTON, LLC,
a California limited liability company
By: CIM 2009 CM Portfolio, LP,
a California limited partnership,
its sole member
By: CIM 2009 CM Portfolio GP, LLC, .
a California limited liability company,
its sole general partner
By: CIM Urban Real Estate Fund, L.P.,
a Delaware limited partnership,
its sole member
By: CIM Urban Fund GP,
a California limited li
its sole general p
By: �: ✓l/ v��`---
Name: Aymbam Shemesh
Title: Authorized Sig a r ry
(Signatures Continue on Next Page)
600830958 S-1 Agreement re Disposition -and Development Agreement
And Other Agreements
BANK:
COMERKA BANK, in its capacity as Administrative Agent
By:11�QN
Name: 13
Title: Pi ;UP DICRIO
— FIRST M€ PRE810SW4GROUP MANAGrek
(Signatures Continue on Next Page)
600830958 S-2 Agreement re Disposition and Development Agreement
And Other Agreements
istrator
REVI ND APPROVED: INITIATED AND APPROVED:
City/Unilhistrator Director of Economic Ddvlopment
(Signatures Continue on Next Page)
600830958 S-3 Agreement re Disposition and Development Agreement
And Other Agreements
REVIJF-,t
Exei
600830958
REDEV P NT AGENCY OF THE CITY
OF H N BEACH
Exe Director
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A ency deneral Counse f(2,? iU,
APPR D AS TO F
Agenc ec' 1 Counsel
INITIATED A OVED:
Deputy Executive for
S-4 Agreement re Disposition and Development Agreement
And Other Agreements
SCHEDULE 1
Loan Documents
1. Borrower Documents:
Loan Agreement
Promissory Note
Security Agreement
Environmental Indemnity
ADR Agreement
Fee Agreement
UCC-1 Financing Statement
2. Guarantor Documents:
Guaranty
Environmental Indemnity
ADR Agreement
3. Harbor Lofts Documents:
Harbor Lofts Secured Guaranty
Harbor Lofts Deed of Trust
Environmental Indemnity
Harbor Lofts Security Agreement
ADR Agreement
Agreement to Furnish Insurance
UCC-1 Financing Statement
4. Huntington Documents:
Huntington Secured Guaranty
Huntington Deed of Trust
600830958v6 Schedule 1
Agreement re Disposition and Development Agreement
And Other Agreements
Environmental Indemnity
Huntington Security Agreement
ADR Agreement (Huntington)
Agreement to Furnish Insurance
UCC-1 Financing Statement
Subordination of Property Management Agreement and Management Fees
Assignment and Subordination of Hotel Operating Agreement
Ground Lease Estoppel of Cracchiolo
Agreement RE Disposition and Development Agreement and Other Agreements
SNDAs from tenants of 4,000 square feet or more
5. Hancock Documents:
Hancock Secured Guaranty
Hancock Deed of Trust
Environmental Indemnity
Hancock Security Agreement
ADR Agreement
Agreement to Furnish Insurance
UCC- 1 Financing Statement
Subordination of Property Management Agreement and Management Fees
6. Pico Documents:
Pico Secured Guaranty
Pico Deed of Trust
Environmental Indemnity
Pico Security Agreement
ADR Agreement
600830958v6 Schedule 1 Agreement re Disposition and Development Agreement
And Other Agreements
Agreement to Furnish Insurance
UCC-1 Financing Statement
Subordination of Property Management Agreement and Management Fees
Subordination Agreement with City of Los Angeles
SNDAs from Panda Express, Wells Fargo and Footlocker
7. CIM/Sacramento Documents:
CIM/Sacramento Secured Guaranty
CIM/Sacramento Deed of Trust
Environmental Indemnity
CIM/Sacramento Security Agreement
ADR Agreement
Agreement to Furnish Insurance
UCC-1 Financing Statement
Subordination of Property Management Agreement and Management Fees
Subordination Agreement executed by the Redevelopment Agency of the City of
Sacramento
SNDAs from tenants of space exceeding 2,000 square feet
8. Globe Documents:
Globe Secured Guaranty
Globe Deed of Trust
Environmental Indemnity
Globe Security Agreement
ADR Agreement
Agreement to Furnish Insurance
UCC-1 Financing Statement
600830958v6 Schedule 1 Agreement re Disposition and Development Agreement
And Other Agreements
Subordination of Property Management Agreement and Management Fees
Subordination Agreement executed by the Redevelopment Agency of the City of
San Jose
600830958v6 Schedule 1 Agreement re Disposition and Development Agreement
And Other Agreements
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On September 4, 2009, before me, Lory Ann Apilado, a Notary Public, personally appeared
Avraham Shemesh, who proved to me on the basis of satisfactory evidence to be the
person(&) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her -/their authorized capacity(ie* and that by
his/heWtheir signature(s) on the instrument the person(s}; or the entity upon behalf of which
the persons) -acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and offici I seal.
By: _C=.Q -
ory jAn_n-X_pil4io, Nota lic
SEAL
STATE OF CALIFORNIA )
SS
COUNTY OF
O / before me, 1 Notary Public,
personally appeared /L46T) who proved to me on the basis of
satisfactory evidence to be the personal whose named )dare subscribed to the within
instrument and acknowledged to me that�lh 'sheAhey executed the same in( hj t t6r
authorized capacity(i :s), and that b3�gi signature:4) on the instrument the perso*), or
the entity upon behalf of which the person) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
W'tne ha and o icial seal. =60r�an;;e
RZA
1857021
[Seal] $ �®California z
unty(Signature) Au 4, 2013
STATE OF CALIFORNIA )
) SS
COUNTY OF )
O o �,before me, 44 Notary Public,
personally appeared L.who proved to me on the basis of
satisfactory evidence to be the person(} whose name(ts) (Dar-. subscribed to the within
instrument . and acknowledged to me that -hs e executed the same in e:
authorized capacity(*s), and that by-W er it signature) on the instrument the personK or
the entity upon behalf of which the person(o acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witne m h and icial seal. =Ora
PARZAa #� 1857021[Seal] a �'-- California z
ounty( ignature) s Au 4, 2013
600830958
STATE OF CALIFORNIA )
) SS
COUNTY OF 6 j"i5- )
On L_� �r�,C .�,3 before me, P• L- �P/%YL? , Notary Public,
personally appeared ��D�� �� who proved to me on the basis of
satisfactory evidence to be the personor) whose name) subscribed to the within
instrument and acknowledged to me that heAW executed the same ir(�hehtiefr
authorized capacity(jas), and that by ts�iGggwir signatureM on the instrument the person
,W, or
the entity upon behalf of which the person()4 acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foreizoinl; paragraph is true and correct.
Witne han d cial seal.
(Signature)
STATE OF CALIFORNIA )
SS
COUNTY OF
P. L. ESPARZA
3 Commission # 1857021
a `� Notary Public - California Z
[Seal] Z Orange County
a
M Comm. Expires Aug 4, 2013
O fL3 before me Notary Notary Public,
personally appeared �OA,�) L - �L�iv✓ who proved to me on the basis of
satisfactory evidence to be the person(p) whose nam*)(:�DVar--, subscribed to the within
instrument . and acknowledged to me that -hoQE0,ey executed the same in- . er 'r
authorized capacity(Ks), and that by-h�ir signature4 on the instrument the person(o, or
the entity upon behalf of which the person ! acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
5illesXh dffi
ocial seal.
[Seal]
(Signature)
600830958
P. L. ESPARZA
Commission # 1857021
Z .a Notary Public - California Z
Orange County >
OM Comm. Expires Aug4, 2013
Recorded In Official Records, Orange county
Tom Daly, Cleric -Recorder
11011111111147.00
ltt CORDING ItFEQUF..STIED BY AND ) 2009000516447 08:00am 09/30/09
113 91 D11 A36 A34 U04 41
WHEN RECORDED MAIL TO: ) 0.00 0.00 0.00 a.ao 120.00 0.00 0.00 a.00
C'OMERiCA HANK )
39200 Six Mile Road )
Mail Code 7578 )
Livonia, MI 48152 )
Attn: National Documentation Services }
A FN o zY SPACE ABOVE'rHIS L{NL• 6OR ItF.CORDFR'S t:Sl:
DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE
FILING; (WITH ASSIGNMENT OF RENTS AND LEASES) uil;cCr' i.'ct
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of Rents
and Leases) ("Deed of Trust") is made as of August 28, 2009, by CIMMUNTINGTON. LLC, a
California limited liability company ("CIM"), whose address is 6922 Hollywood Boulevard,
Suite 900, Los Angeles, CA 90028, and the Redevelopment Agency of the City of Huntington
Beach ("Agency"), whose address is City Hall, 2000 Main Street, Huntington Beach, CA 92648
(Agency and CIM are collectively referred to herein as "Trustor"), to Old Republic Title
Companv (hereinafter called "Trustee"), whose address is 450 N. Brand Blvd., 8th Floor,
Glendale, CA 91203, !'or the benefit of COMERICA BANK, as "Agent" (in such capacity.
hereinafter called "Beneficiary"), for the lenders (each, a "Lender" and collectively, the'
"I enders") from time to time party to that certain Loan Agreement of even date herewith (the
"Loan Agreement") among CIM 2009 CM Portfolio, LP, a California limited partnership
("Borrower"), Lenders and Beneficiary. Beneficiary's address is 2000 Avenue of the Stars. Suite
210, IA)s Angeles, CA 90067, Attn: Commercial Real Estate - MC 4693. Capitalized terms used
herein and not otherwise defined shall have the meaning given in the Loan Agreement.
SEE OXHISIT A WITNFSSETH:
I . (i) Agency hereby IRREVOCABLY GRANTS, TRANSFERS and ASSIGNS to
Trustee, its successors and assigns, in Trust, with POWER OF SALE TOGETHER WITH
MGHT OF ENTRY AND POSSESSION, all estate, right, title and interest which Agency now
has in and to the leasehold interest of Agency created by the Ground Lease (defined below) in
the undivided 4.505% interest of the Cracchiolo Trust (defined below) in the heal Property and
the (tents (both as defined below) (the "Agency Interest"), and all right, title and interest of
Agency in and to the Ground Lease and the Subground Lease (defined below) and all rights,
estates, powers and privileges appurtenant thereto,
(ii) CIM hereby IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to
Trustee, its successors and assigns, in Trust, with POWER OF SALE TOGETHER WITH
RIGHT OF ENTRY AND POSSESSION all of any CIM's present and future right, title and
interest in all of CIM's assets, including without limitation all estate, right, title and interest
which CIM now has or may hereafter acquire in and to the Real Property and all other lights,
id �111(•i(Y66h••1 - 1 - Ikud ul"rrum
(I IIII Init loni
Description: Orange,CA Document-Year.DecTD 2009,516447 Page: 1 of 41
Order: 87998 Comment:
interests and properties, and all rights, estates, powers and privileges appurtenant thereto, and the
property:
(a) (1) The undivided 95.495% interest of CIM in the fee title to the Real Property,
(2) the leasehold interest of CIM created by the Ground Lease in the undivided 4.505% interest
of the Cracchiolo Trust in the Real Property, and all rights of CIM in and to the Ground Lease,
and (3) the subleasehold interest of CIM in the leasehold interests of CIM and Agency,
collectively, in the Real Property, created by the Subground Lease and all rights ol'C1M in and to
the Subground Tease, in and to all that certain real property now or hereafter acquired, in the
City of Huntington Beach, County of Orange, State of California (the "Land"), more particularly
described as follows:
See Exhibit "A" attached hereto
(b) all buildings, structures and other improvements now or in the future located or to
be constructed on the Land (the "Improvements")-,
(c) all tenements, hereditaments, appurtenances, privileges, franchises and other
rights and interests now or in the future benefitting or otherwise relating to the i..and or the
Improvements, 'including any options or rights of first refusal to purchase any interest in the real
property that is subject to the Ground [,ease or Subground Lease, any easements, rights -of -way,
development rights, mineral rights, water and water rights, pumps and pumping plants and all
shares of stack cvidcncing the same (the "Appurtenances," and together with the Land and the
Improvements, the "Real Property");
(d) subiectto the assignment to Beneficiary set forth in Paragraph 10 below, all rents,
issues, income, revenues, royalties and profits now or in the future payable with respect to or
otherwise derived from the Trust Estate or the ownership, use, management, operation, leasing,
subleasing or occupancy of the Trust Estate, including those past due and unpaid (the "Rents");
(c) all present and future right, title and interest of CIM in and to all inventory,
equipment, fixtures and other goods (as those terms are defined in Division 9 of the California
Uniform Commercial Code (the "UCC"), and whether existing now or in the future) now or in
the future located at, upon or about, or affixed or attached to or installed in, the Real Property, or
used or to be used in connection with or otherwise relating to the Real Property or the ownership,
use, development, construction, maintenance, management, operation, marketing, leasing or
occupancy of the Rcal Property, including furniture, furnishings, machinery, all gas, electric.
cooking, heating, cooling, plumbing, air conditioning, lighting, refrigeration, incinerating,
compaction, lire: protection and sprinklers, surveillance and security, vacuum cleaning, public
address and communications equipment and systems, all kitchen and laundry appliances, screens,
partitions, elevators, escalators, parking equipment, appliances, building materials and supplies,
generators, boilers, furnaces, water tanks, heating, ventilating and air conditioning equipment
and all other types of tangible personal property of any kind or nature, and all accessories,
additions, attachments, parts, proceeds, products, repairs, replacements and substitutions of or to
w)y of such property (the "Goods," and together with the Real Property, the "Property"):
(1) ail present and Future right, title and interest of CIM in and to all accounts, general
intangibles, chattel paper, deposit accounts, money: instruments and documents (as these terms
W08-10867v4 - Ucak or Trust
I li unt ington )
Description: Orange,CA Document-Year.DoclD 2009.516447 Page: 2 of 41
Order: 67998 Comment:
are defined in the UCC), all rights to payment, all letter of credit rights relating to any of the
Property, all commercial tort claims relating to the Property, all rights of CIM as declarant or
manager under any covenants, conditions and restrictions, reciprocal easement agreements or
other similar instruments or agreements, including, without limitation, payments and rights to
payment anti/or reimbursements under such agreements, and all other agreements, obligations,
rights and written materials (in each case whether existing now or in the future) now or in the
future relating to or otherwise arising in connection with or derived from the Property or any
other part of the Trust Estate or the ownership, use, develppment, construction, maintenance,
management, operation, marketing, leasing, occupancy, sale or financing of the Property or any
other part of the Trust Estate, including (to the extent applicable to the Property or any other
portion of the Trust ];slate) (1) permits, approvals and other governmental authorizations,
(ii) improvement plans and specifications and architectural drawings, (iii) agreements with
contractors, subcontractors, suppliers, project managers, supervisors, designers, architects.
engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout,
refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and
insurance policies, together with insurance payments and unearned insurance premiums,
(vi) claims, demands, awards, settlements and other payments arising or resu ing from or
otherwise relating to any insurance (whether or not Beneficiary is named as a loss payee af'such
insurance) or any loss or destruction of, injury or damage to, trespass on or taking, condemnation
(or conveyance in lieu of condemnation) or public use of any of the Properly, (vii) license
agreements, service and maintenance agreements, purchase and sale agreements and purchase
Options, together with advance payments, security deposits and other amounts paid to or
deposited with CIM under any such agreements, (viii) reserves, deposits, bonds, deferred
payments, refunds, including, without limitation, property tax or income tax refunds, rebates,
reimbursements, discounts, cost savings, escrow proceeds, sale proceeds and other rights to the
payment of money, trade names, trademarks, goodwill and all other types of intangible personal
property of any kind or nature, (ix) all deposit accounts, cash, revenues, rental income and
reimbursements., (x) all rights of CIM, including without limitation, all rights to payment under
the DDA and the hotel Management Agreement, the rights to Shared Revenue only (as defined
in the Parking Agreement, and subject to Section 49 below, any transferrable rights under the
Narking Agreement, and (xi) all supplements, modifications, amendments, renewals. extensions.
proceeds, replacements and substitutions of or to any of such property (the "Intangibles"); and
(g) 11' at any time, the Hotel Management Agreement is not in effect. all revenues.
occupancy charges, deposits, license fees, hotel room charges, cabana charges, food and
beverage revenues, food service revenues, merchandise sales, membership or resort charges,
telephone or internet charges, and all other rights to payment, issues and profits and accounts
receivable and money from the operation of the hotel and related operations at the Property.
l""or purposes of this Dced of Trust, the following definitions shrill have the meanings set
kirth below:
"Development Agreement": That certain Disposition and Development Agreement by
and between Agency and CAM (as successor in interest to CIM Group, I,I..C) dated mgul'June 17,
1999 as amended by (i) an implementation Agreement executed on April 6, 2000, (6) a Second
Implementation Agreement dated as of March 5, 2001, (iii) a Third Implementation Agreement
dated as of October 30, 2002, (iv) a Fourth Implementation Agreement datedas of September 15,
G00K40867w4 .3 - Ihcd (frrrusi
�Nn�aing��>nt
Description; Orange,CA Document-Year.Doc= 2009,516447 Page: 3 of 41
Order: 87998 Comment:
2003, (v) a Fifth implementation Agreement dated as of July 19, 2004, and (vi) a Sixth
Implementation Agreement dated as of November 3, 2008.
"Ground Lease": the Amended and Restated Ground Lease and Option to Purchase Fee
dated as of June 30, 2005 by and between Dolores L. Cracchiolo and Salvator W. Cracchiolo, as
trustees for the Declaration of Trust dated June 12, 1979, and Salvator W, Cracchiolo and
Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28. 2003
(collectively, "Cracchiolo Trust"), and Trustor, a Memorandum of which was recorded on
September 7, 2005 in the Official Records as Document No. 200500070718 1, as modified by
that certain Second Amended and Restated Memorandum of Lease and Option to Purchase and
Amendment .of Ground lease dated as of August 26, 2009 between Cracchiolo Trust and
Trustor, pursuant to which the Cracchiolo Trust leased its undivided tenancy -in -common interest
in the Real Property to Trustor.
"Subground Lease": the Amended and Restated Subground Lease and Option to Purchase
Fcc dated as of .tune -
2005 by and between Trustor as sublandlord and CIM as subtenant,
pursuant to which CIM and Agency collectively leased their leasehold interest in the Cracchiolo
Trust's undivided tenancy -in -common interest in the Real Property to C:IM, a Memorandu n of
which was recorded on,,,- Jn82 e , 2009. as Document No.� —5.5'of Official
Records.
"Parking Agreement": Operating Agreement for the Strand Public Parking Structure,
dated November 26, 2008, by the City of Huntington Beach and CIM, recorded January 15, 2009
in the Official Records of. Orange County, California, as Document No. 2009000018383. as it
may be amended, extended, renewed, replaced or supplemented.
"Hotel Management Agreement": collectively, the Management Agreement Huntington
Beach Strand hotel. dated April 10, 2006, by CIM and Joie de Vivre Hospitality. Inc., a
California corporation ("Operator"), as amended by a letter agreement dated as of October 29,
2009, as it may be amended, extended, renewed, replaced or supplemented.
2. CIM further grants to Trustee and Beneficiary, pursuant to the UCC. a security
interest in all present and future right, title and interest of CIM in and to all assets of CIM,
including, without limitation, all Goods and Intangibles and all of the Trust Estates described
above in which a security interest may be created under the UCC (collectively, the "Personal
Property"). This Deed of Trust constitutes a security agreement under the UCC. conveying a
security interest in the Personal Property to Trustee and Beneficiary. Trustee and Beneficiary
shall have, in addition to all rights and remedies provided herein, all the rights and remedies of a
•secured party" under the UCC and other applicable California law. Trustor covenants and
agrees that this Deed of Trust constitutes a fixture filing under Sections 9334 anti 9502 of* the
UCC.
All of the real and personal property and fixtures described in Section l and all current
and future right, title and interest of Agency and/or CIM therein, are collectively called herein,
(he. -Trust Estate." The term "future" applies only to such rights, title and interest that exist prior
to the indefeasible payment in full of the Loan, and, as to Agency, only to the extent arising from
the Agency Interest.
r,l)u840867YA - 4 - Mud of lrua
(I luming)on I
Description: Orange,CA Document-Year.Doc= 2009,516447 Page: 4 of 41
Order; 87995 Comment:
For purposes of the fixture filing that is part of this Deed of Trust, CIM provides the
following information as a representation and warranty to Beneficiary, and to provide notice of
the same:
CIM is a limited liability company.
CIM is organized under the laws of the State of California.
CIM's organizational 'identification number is 200103110055.
CIM's full correct, legal name is CIM/1-luntington, I.I.C.
FOR THE PURPOSE OF SECURING, in such order of priority as Beneficiary may
elect, (1) payment of all amounts under that certain Secured Guaranty of even date herewith
(which guarantees certain obligations of Borrower in connection with a loan in the original
maximum principal amount of One Hundred Forty -Five Million Dollars ($145,000.000)),
executed by CIM for the benefit of Beneficiary (as modified, extended, replaced or
supplemented, the "Secured Guaranty"); (2) payment of interest on the obligations under the
Secured Guaranty, at the interest rates set forth in the Loan Agreement; (3) payment ofall other
sums, with interest as herein provided, becoming due or payable under the provisions of this
Deed of Trust to Trustee or Beneficiary; (4) due, prompt and complete observance, performance
and discharge of each and every condition, obligation, covenant and agreement contained in this
Deed of Trust or in the Secured Guaranty; and (5) payment of such additional sums, with
interest, when evidenced by another written agreement, which is, by its terms, secured by this
Deed of Trust.
This Deed of 'trust does not secure any obligations under any i-nvironmental Indemnity
nor any obligations of CIM Urban heal Estate Fund, L.P., a Delaware limited partnership, as
Guarantor,
Notwithstanding any other provision of this Deed of Trust (and notwithstanding the
reference to Agency as "Trustor" hereunder or under any of the Loan Documents), Agency shall
not., under any circumstances, have any liability For the obligations of Trustor hereunder except
to the extent of its leasehold interest in the Property which is being pledged hereby, and then
only to the extent required to secure the obligations of CIM. In addition, in accordance with
Section 317 of the Development Agreement, this Deed of Trust and the rights of Beneficiary or
any person acquiring title through or following foreclosure of this Deed of"Trust are subordinate
and subject to the provisions of the Development Agreement, the "Grant Deed" and the
"Agreement Containing Covenants Affecting Real Property" (each as defined in the
Development Agreement), Nothing in this paragraph shall modify or diminish CIM's
obligations under any of the Loan Documents, including without limitation, as Trustor under this
Deed of Trust,
Notwithstanding anything to the contrary herein, any representation, warranty, covenant.
agreement, oblination or liability of CIM set forth herein is applicable to and made solely with
respect to CIM's estate, right, title and interest in and to the Property, and is not meant to nor
shall the same be construed to apply to the Agency Interest.
1,008a0867v4 -5- Deed nrrrust
fffunhnglon)
Description: Orange,CA Document-Year,DoclD 2009,526447 Page: 5 of 41
Order: 87998 Comment:
TO PROTECT AND MAINTAIN THE SECURITY OF THIS DEED OF TRUST, CIM
At; REDS:
(a) To pay, perform, observe and discharge each and every condition. obligation,
covenant and agreement for which this Deed of Trust has been given as security as provided
above.
(b) Subject to the Loan Agreement and. Section 3 of this Deed of Trust, to keep the
Property in good condition and repair; not to remove or demolish any improvement thereon; to
complete or restore promptly and in good and workmanlike manner any improvement which
may be consintcied, damaged or destroyed thereon and to pay when due all claims for labor
performed and materials furnished therefor; to comply with all laws affecting the Trust Estate or
requiring any alterations or improvements to be made thereon; not to commit or permit waste
Thereof, to perlirrm each and every obligation of Trustor under the terms of the Ground Lease
and the Subground Lease; not to commit, suffer or permit any act upon the 'Trust Estate in
violation of law; to do all acts which from the character or use of the Property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(c) CiM shall maintain all required insurance in companies, amounts, coverages,
deductibles, and forms satisfactory to the Beneficiary, as required in the separate insurance letter
agreement. of even date herewith between CIM and Agent (the "Insurance Agreement"). Neither
Beneficiary nor any lender nor Trustee, by reason of accepting, rejecting, approving or
obtaining insurance, shall incur any liability for (i) the existence, nonexistence, form or legal
sufficiency thert:of, (ii) the solvency or insolvency of any insurer, or (iii) the payment of losses.
All property insurance policies shall name Beneficiary, for the benefit of the Lenders, as the
primary loss payee, all liability insurance policies shall name Beneficiary, i'or the benefit of the
benders, as an additional insured, and all policies shall provide that they cannot be terminated as
to Beneficiary except upon thirty (30) days' prior written notice to Beneficiary. C)M shall
deliver to Beneficiary the original of all certificates evidencing the required policies, and, if'
requested by Beneficiary, receipts satisfactory to the Beneficiary, evidencing payment of the
premiums therefor. Should CIM fail to insure or fail to pay the premiums on any required
insurance or fail to deliver the policies or renewals of them as provided above, Beneficiary may
(hut is not obligated to) have the insurance issued or renewed (and pay the premiums on it flor the
account of CIM) in amounts and with companies and at premiums as Beneficiary deems
appropriate. If Beneficiary elects to have insurance issued or renewed to insure Beneficiary's or
the I-cnders' interest, Beneficiary shall have no obligation to also insure T"rustor's interest or to
notify Trustor of Beneficiary's actions. All sums advanced by Beneficiary or Lenders to pay
premiums oil insurance policies which CIM is required to maintain hereunder shall be due and
payable by CIM to Beneficiary (for its own account or for the account of Lenders, as applicable)
upon demand, and failing prompt reimbursement, shall be added to the indebtedness secured b�
this Deed of"Trust and earn interest at the Default interest rate set forth in the Loan Agreement
until paid in full.
(d) As of the date this Deed ol'Trust is recorded and continuously until this Deed of
1'rust is fully rceonveyed, the insurance policies shall conform to the requirements set forth in the
Insurance Agreement.
(,0094086'N•4 - 6 - Deed of I m,I
(IIII m ng+oaU
Description: Orange,CA Document- Year. DocTD 2009.516447 Page: 6 of 41
Order: 87998 Comment:
3. The amount collected under any fire or other insurance policy maintained by CIM
with respect to the Property (whether or not required hereunder and whether or not Beneficiary is
named as loss payee) may be applied by Beneficiary upon any indebtedness secured hereby and
in such order as Beneficiary may determine, or at the option of Beneficiary the entire amount so
collected or any part thereof may be released to. CIM. Such application or release shall not cure
or waive any Event of Default (as defined in Paragraph IS below) or notice of an Event of
Default hereunder or invalidate any act done pursuant to such notice. The foregoing
notxviUistanding, if CiM gives Beneficiary written notice ol'CIM's intent to repair and restore the
Improvements and all of the following conditions are satisfied, Beneficiary will permit insurance
proceeds held by Beneficiary to be used for repair or restoration of the improvements:
(a) Beneficiary tictermines that its security interest in the Property has not been impaired: (b) the
repair or restoration of the Improvements can be completed prior to the maturity date of the
Loan, (c) no Event of Default exists under any of the Loan Documents; (d) if Agent has
determined that the proceeds of the insurance are insufficient to pay all costs of the repair or
restoration (including, without limitation, taxes, financing charges and insurance daring the
repair period), Borrower or CIM has paid, or caused to be paid, such costs up to the amount of
the deficiency that Agent has determined; (e) Beneficiary and CIM have established an
arrangement (or lien releases and disbursement of funds acceptable to Beneficiary (which
procedures may be substantially the same as Beneficiary's standard construction lending
proce(Jures); (6 Beneficiary shall have received and approved plans and specifications for the
work, as approved by the applicable Governmental Authorities and any other Persons or entities
that have such approval rights, a guaranteed maximum price contract for the work signed by a
contractor acceptable to Beneficiary, a cost breakdown for the work, and, if requested by
Beneficiary, a payment and performance bond or sub -guard insurance for the work., all of which
Shall be acceptable to Beneficiary; and (g) CIM has delivered to Beneficiary evidence acceptable
to Beneficiary that (i) after completion of the work, the income from the Real Property will be
sufficient to pay all expenses and debt service for the Real Property; (ii) upon completion ol'thc
work, the size, capacity and total value of the heal Property will be at least as great as it was
herorc the damage occurred; and (iii) there has been no material adverse change in the financial
condition or credit of CIM since the date of this Deed of 'Trust; and (h) satisfaction of any
additional conditions that Beneficiary may reasonably establish to protect its security. CIM
hereby acknowledges that the conditions described above are reasonable. However, as to
insurance proceeds in amounts less than $200,000, if the conditions in Section 3(a), (b) and (c)
are satisfied, then CIM may retain the insurance proceeds, and use them to pay the costs to repair
or restore the Improvements, without being required to follow the other procedures in Section 3.
4. CAM agrees to appear in and defend any action or proceeding purporting to allbct
the security hereof or the rights or powers of Beneficiary, any Lender or Trustee; and to pay all
costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sure. in
any such action or proceeding in which Beneficiary, any Lender or Trustee may appear, and in
any suit broughtby l3cneliciary to foreclose this Deed of Trust.
5. CIM agrees to pay and discharge, at least ten (10) days prior to delinquency. all
taxes of every kind and nature, including real and personal property taxes, special taxes, and
income, franchise, withholding, profits and gross receipts taxes, all general and special
assessments, including assessments on appurtenant water stock, levies, permits. inspection and
license fees, all water and sewer rents and charges, and all other public charges whether of a like
or different nature, imposed upon or assessed against CIM or the Trust Estate or any part thereof
(I Imuingtnn)
Description: Orange,CA DoCument-Year.DoCID 2009,516447 Page: 7 of 41
Order: 67998 Comment:
or upon the revenues, rents, issues, income and profits thereof or upon this Deed of Trust or the
indebtedness now or hereafter secured hereby; when due, all encumbrances, charges and liens,
with interest, on the Trust Estate or any part thereof, which appear to be prior or superior hereto
or subject or subordinate hereto; and all costs, fees and expenses of this Trust, if any 1 vortt of
Default has occurred under any of the Loan Documents or if CIM has failed to pay real property
taxes or assessments prior to delinquency or insurance premiums prior to lapse, then. at
Beneficiary's wt•itten request, CIM shall pay to Benericiary in equal installments on the day on
which monthly payments of interest are due under the Loan Agreement, sufficient funds (as
estimated by Beneficiary from time to time) to pay when due the next maturing taxes,
assessments and hazard insurance premiums, When so provided with sufficient funds.
Beneficiary shall pay such taxes, assessments and hazard insurance premiums before
delinquency. Any excess over the amount required for such purposes shall be held for future
use. refunded to CIM, or, after the occurrence of an Event of Default. applied to any
indebtedness hereby secured, at Beneficiary's option.
CIM agrees to promptly and completely observe, perform, and discharge each and every
condition, obligation, covenant and agreement affecting the Trust [state, whether the same is
prior and superior or subject and subordinate hereto including, if the security hereunder is or will
be a condominium, community apartment or part of a planned development, each and every
provision to be performed by CIM under any Declaration of' Covenants, Conditions and
Restrictions pertaining to the Real Property and, upon written request of Beneficiary, to pay all
assessments and maintenance charges, if the same have not been paid or legal steps have not
Ewen initiated to enforce such payment within ninety (90) days after such written request is made.
If' CIM Fails to make any payment or to do any act as herein provided, then Beneficiary or
'trustee, but without obligation so to do and without notice to or demand upon CIM and without
releasing CIM from any obligation hereof, may: make or do the same in such manner and to such
extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon the Real Property for such purposes; appear in and defend any action or
proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or
"Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the
judgment ofeither appears to be prior or superior hereto; and, in exercising any such powers, pay
necessary expenses. employ counsel and pay reasonable attorneys' fees and costs in connection
therewith.
CIM agrees to pay within ten (10) Business Days after demand therefor by Beneficiary,
all sums so expended by Beneficiary, any [_ender or Trustee, with interest from date of
expenditure until paid in full by CIM at a rate equal to the Default Interest rate, which sums shall
be secured by this Deed of Trust to the same extent and with the same priority as the obligations
that are payable under the Secured Guaranty, and such sums shall be deemed mandatory
Advances required for the preservation and protection of the lien of this Deed of Trust and
Trustee's and Beneficiary's rights hereunder.
G. Triistor agrees that any award of damages in connection with any condemnation
!'or public use of or injury to the Property or any part thereof is hereby assigned and shall be paid
to licneficiary \vvho may apply or release such moneys in the same manner, upon the same
conditions, and with the same effect as above provided for disposition of proceeds of fire or
other insurance. If' such conditions are not satisfied, then regardless of whether the security given
NW840867v4 - 8 - Ihcd of"Trusr
( I {unlinj;tun )
Description: Orange,CA Document- Year, DoCXD 2009.516447 Page. 8 of 41
Order: 87998 Comment:
hereby is impaired by a partial condemnation, Beneficiary, in its sole and absolute discretion,
shall have the right to apply all compensation, award or other payments or relief therefor made
on account thereof to either the payment of accrued but unpaid interest and second to the
prepayment of the obligations under the Secured Guaranty or reimbursement of CIM for
expenses incurred by it in the restoration of the Property, and in respect thereto. CIM hereby
waives the benefit of any statute or rule of law which may be contrary thereto.
7. By accepting the payment, performance or observance of any condition,
obligation, covenant or agreement contained herein after the date to be paid, performed or
observed as provided hereunder, Beneficiary does not waive its right either to require prompt
payment, performance or observance when due of all other conditions, obligations, covenants or
agreements contained herein or to declare an Event of* Default for failure so to do.
8. At any time or from time to time, without liability therefor and without notice,
upon written request of Beneficiary and presentation of this Deed of Trust and the. Secured
Guaranty, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of the Trust Estate; consent to the
making of any map or plat thereof; join in granting any easement thereon; join in the execution
of or subordination of the lien or charge hereof to any covenants, conditions or restrictions
affecting said property; or join in any extension agreement or any agreement subordinating the
lien or charge hereof.
9. Upon written request of Beneficiary stating; that all sums secured hereby have
been paid, and upon surrender of this Deed of Trust and the Secured Guaranty to Trustee for
cancellation and retention and upon payment by CIM of its fees, "Trustee shall reconvey, without
warranty, the Trust Estate then held hereunder. The. recitals in such reconveyanee of any matters
or facts shall be conclusive proof' of the truthfulness thereof. The grantee in such reconveyanee
may be described as "the person or persons legally entitled thereto."
M Trustor absolutely and unconditionally hereby assigns, transfers, conveys and sets
over to Beneficiary all the Rents; provided, however, prior to any Event of Nflault, CIM shall
have the right as the agent and fiduciary representative of Beneficiary for collection and
distribution purposes only, to collect and receive the Rents as they become due and payable to be
applied pursuant to the terms of the Loan Agreement. After the occurrence of any Event of
[Moult, Beneficiary may at any time without notice, either in person, by agent or by a receiver to
be appointed by a court, and without regard to the adequacy of any security for the indebtedness
hereby secured, enter upon and take possession of the Property or any part thereof, in its own
name, in the name of Lenders or in the name of Trustor, sue for or otherwise collect the Rents,
including those past due and unpaid and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees and expenses, to the payment of the principal and
interest and all other sums due or payable under the Secured Guaranty and the Loan Agreement
and to the payment of all other sums payable under this Deed of Trust and in such order as
13encliciary may determine. The entering upon and taking possession of the Property. the
collection ol'the Rents and the application thereof as aforesaid, shall not cure or waive any Event
of Dolbult or notice of an > vent of Default under any of the loan Documents or invalidate any
act done pursuant to such notice. However, if the Event of Default is completely cured and no
Other Event of Default then exists under any of the loan Documents, at a time prior to
Beneficiary's tiling of a petition for the appointment of a receiver, then Beneficiary shall not
t�(N3R-0i)Nti7�d -9- Ihad of Iru,t
lulit nktun )
Description: Orange,CA Document- Year, DocSD 2009.516447 Page: 9 0t� 41
Order: B7998 Comment:
subsequently exercise such remedies, on account of the cured Event of Default; provided that
Beneficiary shall in no way he restricted from exercising any and. all of such remedies after the
occurrence of any subsequent Event of Default.
All leases, subleases, sub -subleases and rental agreements now or hereafter affecting the
!teal Property, including ail oil and gas leases and other subsurface leases and the royalties
derived therefrom. are hereby assigned and transferred to Beneficiary by CIM and, to the extent
applicable, by Agency. The term "hereafter" applies to the period from the date hereof until
indefeasible payment in full of the Loan, and, as to Agency, only to the extent arising from the
Agency Interest. If requested by Beneficiary, CIM shall provide to Beneficiary a subordination,
nctn-disturbance and attornment agreement, in form acceptable to Beneficiary, executed by each
tenant under a lease or rental agreement that is executed after the date hereof for a portion of the
(teal Property.
Trust.or agrees that it will not (a) execute any further assignment of any of its right, title
rind interest in the Rents without the prior written consent of Beneficiary; (h) accept prepayments
of any installments of Rents to become due under any leases or rental agreements in excess of
one (I ) month, except prepayments in the nature of security percentage rents and pass through
expenses which, together with any prepaid rent. will not exceed an amount equal to twa (2)
months' rent under the lease or rental agreement; and (c) with respect to any lease or rental
agreement having a term of two (2) years or more, CIM will not terminate, amend, modify or
accept a surrender of any such lease or rental agreement without the prior written consent of the
Beneficiary, to the extent entry into a new lease for the same would require Beneficiary's
consent under the loan Agreement. Beneficiary shall approve or disapprove any matter so
submitted by CIM within ten (10) Business Days after Beneficiary's receipt thereof, If
Beneficiary has not delivered written approval or disapproval of such proposed transaction
within five (5) Business Days after Beneficiary's receipt of a written notice (which notice is
delivered alter the expiration of such ten (10) Business Day period) that states that i3enehciary's
Cailurc to respond will be deemed approval of the transaction, then such proposed transaction
will be deemed to he approved,
11. CIM may enter into leases of the retail and office portions of the Improvements in
accordance with the requirements of Section 10.17 of the Loan Agreement, CIM shall use its
best and diligent efforts to lease all of the space at the Property (except the Property subject to
the Hotel Management Agreement) at market rates and subject to market terms and conditions.
CIM shall fully and faithfully perform each and every covenant, agreement, or obligation of
lessor under any and all leases covering any portion of the Properly. CiM shall deliver to
3enciiciary in accordance with Section 10,5,5 of the Loan Agreement, current rent rolls
supplying; the name of the lessee and the net monthly rental for each space and such other
information a, Bcncliciary may reasonably request. Upon the request of Beneficiary. CiM shall
deliver copies of all executed Leases to Agent.
12, CIM hereby represents, warrants and covenants that:
(a) Except as described in the environmental reports that Borrower and/or CIM has
provided to Beneficiary ("Environmental Reports"), neither the Real Property which is the
subject of this Deed of Crust nor any other real property occupied and/or owned by CIM has ever
been used by CiM or, to CIM's knowledge, any other previous owner and/or operator, in
1,01IN IU86'IV I - 10 - Ihed ur Irum
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Description: Orange,CA Document-Year.DocZD 2009.516447 Page: 10 of 41
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connection with the disposal of or to refine, generate, manufacture, produce, store, handle, treat,
transfer, release, process or transport flammable explosives, radioactive materials, asbestos.
PC3, hazardous wastes, toxic substances or related materials, including, without limitation, any
substances defined as or included in the definition of `hazardous substances." "hazardous
wastes," "hazardous materials," or "toxic substances" under any 1-lazardous Materials laws
(defined below) (collectively, "Hazardous Materials"). Trustor will not at any time use the Real
Property or such other real property for the disposal, refining, generating, manufacturing,
producing, storing, handling, treating, transferring, releasing, processing or transporting of any
!-hazardous Materials, except for Hazardous Materials that are used in the course of building,
constructing and operating the Improvements and that are transported, used, stored and disposed
o!, in compliance with all Hazardous Materials Caws.
(b) After diligent investigation including but not limited to, the 1{environmental
Reports provided to Beneficiary, to CIM's knowledge, CIM warrants and represents that the
Real Property is free of Hazardous Materials and contaminants which are or could be detrimental
to the Real Property, human health or the environment or in violation of any governmental laws
or regulations.
(c) Neither the Real Property nor any other real property owned and/or occupied by
CIM has been designated, listed or identified in any manner by the United States Environmental
Protection Agency ("EPA") or under and pursuant to the Comprehensive Environmental
Response, Compensation and liability Act of 1980, as amended, set forth at 42 U,S.C. 9601 et
seq. ("Cf RCLA"), the Resource Conservation and Recovery Act of 1986. as amended, set forth
at 42 U.S.C. 6901 et seq. ("RCRA"), or any other environmental protection statute as a
hazardous waste or hazardous substance disposal or removal site, superfund or cleanup site or
candidate I'ar removal of closure pursuant to RCRA, CERCI.,A or any other environmental
protection statute.
(d) CIM has not received a notice, summons, citation, directive, letter or other
communication, written or oral (collectively, "Notice") from the EPA or any other federal or
state governmental agency or instrumentality, authorized pursuant to an environmental
protection statute, concerning any intentional or unintentional action or omission by CIM
resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, dumping or
otherwise disposing of Hazardous Materials into the environment resulting in damage thereto or
to the fish. shellfish, wildlife, biota or other natural resources.
CIM shall, and shall require, and use CIM's best efforts to cause, all tenants, ernployces,
agents, contractors and subcontractors of CIM and any other persons present on or occupying the
Real Property to, keep andmaintain the Real Property, including the soil and groundwater
thereof, in compliance with, and not cause or permit the Real Property, including the soil and
groundwater thereof, to be in violation of, any federal, state or local laws, ordinances or
regulations relating to industrial hygiene or to the environmental conditions thereon, including
but not limited to any Hazardous Materials laws. Neither Trustor nor tenants. employees.
agents, contractors and subcontractors of CIM or Agency nor any other persons occupying or
present on the Real Property shall use, generate, manufacture, store or dispose of on, under or
about the; Real Property or transport to or from the Real Property any Hazardous Materials,
except for Hazardous Materials that are used by CIM in the course of building. constructing, and
600840867A - 1 1 - Ua:d o{'Trust
(Ilum igklon!
Description: Orange,CA Document- Year. DoclD 2009.526447 Page: II of 41
Order: 87998 Comment:
operating the Improvements and that are transported, used, stored and disposed of, in compliance
with all Hazardous Materials Laws.
The intended use of the Real Property is for hotel, office, retail, parking, and related
improvements (collectively, "Permitted Use") and neither CIM nor Agency shall change or alter
the Permitted Use unless CIM shall have first notified Beneficiary thereof in writing and
Beneficiary shall have determined, in its sole and absolute discretion, that.sueh change or
modification will not result in the presence of Hazardous Materials on the Real Property in such
a level that would increase the potential liability for Hazardous Materials Claims.
CiM shall advise Beneficiary in writing, within three (3) Business Days. of: (a) any
Notices (whether such Notices are received from the EPA, the Occupational Safety and Health
Agency, the Department of Health Services, the State Water Quality Control i3oard, the
Department of'Sanitation, the Department of Public Works or any other federal, state or local
governmental agency or regional office thereon of violation or potential violation which are
received by CIM of any applicable federal, state or local laws, ordinances or regulations relating
to any Ilarardous Materials, including but not limited to CERCLA, RCRA, the Hazardous
Materials Transportation Act, the Hazardous Substances Account Act, the Hazardous Substances
Act, the Occupational Health and Safety Act, the Porter -Cologne Water Quality Control Act, the
Solid Waste Management Act of 1980, the Toxic Pit Cleanup Act, the Underground Tank Act of
1984, and the California Water Quality Improvement Act (collectively, "Hazardous Materials
Laws"); (b) any and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened pursuant to any Hazardous Materials Laws; (c) all
claims rnadc or threatened by any third party against CIM or the Trust Estate relating to damage,
contribution, cost recovery compensation, loss or in resulting from any Hazardous Materials
(the matters set foilh in clauses (a), (b) and (c) above are collectively referred to herein as
"Hazardous Materials Claims"); and (d) CIM's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of the Real Property that would reasonably be expected
to cause the Real Property or any part thereof to be classified as "border -zone property" tinder
the provisions of California Health and Safety Code, Sections 25220 et seq.- or any regulation
adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Real Property under any Hazardous Materials laws.
To the extent Beneficiary has a reasonable basis to believe its security for the Loan is or
might be impaired by any Hazardous Materials Claims or Event of Default hereunder or under
any other Loan Document, Beneficiary shall have the right but not the obligation to .join and
participate in, as a party if it so elects, any legal proceedings or actions initiated in connection
with any Hazardous Materials Claims and to have its reasonable attorneys' and consultants' fees
in connection therewith paid by CIM upon demand.
CIM shall be solely responsible for, and shall indemnify and hold harmless Beneficiary.
arch o1' the. Lenders and their respective directors, officers, employees, agents, successors and
assigns. from and against any loss, damage., cost, expense or liability directly or indirectly arising.
out of or attributable to the use, generation, storage, release, threatened release, discharge,
disposal or presence at any time prior to a Transfer (defined below), of Hazardous Materials on,
under or about the Real Property (whether by CIM or a predecessor in title or any employees,
agents, contractor or subcontractors of CIM, or any predecessor in title, any third persons at any
time prior to a Transfer, occupying or present on the Real Property, or from any other cause
bupR•21}gh7,A - 12 - lhvolul Irn.t
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Description: Orange,CA Document- Year. DoclD 2009.516447 Page. 12 of 41
Order: 87998 Comment:
whatsoever), 'including, without limitation: (a) to the extent they are an element of damages
awarded against Agent or any of the Lenders, all foreseeable and unforeseeable consequential
damages; (b) the costs of any required or necessary repair, cleanup or, detoxification of the Real
Property, including the soil and groundwater thereof, and the preparation and implementation of
any closure, remedial or other required plans; (c) damage to any natural resources; and (d) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses (a), (b) and (c),
including but not limited to reasonable attorneys' and consultants' fees. "Transfer' means (i) the
rcconveyunce of this Deed of Trust on repayment of all amounts secured hereby or payment of
the release price applicable for the Real Property, as described in the Loan Agreement, or (ii) the
transfer of title to all or any part of the Trust Estate at a foreclosure sale under the Deed of Trust,
either pursuant to judicial decree or the power of sale contained herein, or by deed in lieu ot'such
foreclosure.
Any costs or expenses incurred by Beneficiary or Lenders for which CIM is responsible
or for which CIM has indemnified Beneficiary and Lenders shall be paid to Beneficiary (for its
own account or for the account of Lenders, as applicable) on demand, and failing prompt
reimbursement, shall be added to the indebtedness secured by this Deed of Trust and earn
interest at the Di;fault Interest rate set forth in the Loan Agreement, until paid in full.
CIM shall not undertake any cleanup, containment, restoration, removal or other remedial
work. (collectively, `Remedial Work") in response to the presence of any Hazardous Materials
on, under or about the Real Property without prior written notice to Beneficiary of' the scope and
nature of such Remedial Work; provided, however, that prior written notice shall not be
necessary in the event that the presence of Hazardous Materials on, under or about the Real
Property either poses an immediate threat to the health, safety or welfare of any individual or is
ofsuch a nature that an immediate remedial response is necessary and it is not possible to notify
Beneficiary before taking such action. In such event CIM shall notify Beneficiary as soon as
practicable of any action so undertaken. CIM shall not, without Beneficiary's prior written
consent. which shall not be unreasonably withheld, enter into any settlement agreement, consent
dccree or other compromise in respect to any Hazardous Material Claims, which remedial action.
settlement, consent or compromise might, in Beneficiary's reasonablejudgment, impair the value
of Beneficiary's security hereunder.
In the event any investigation or monitoring of conditions on the Real Property or any
Remedial Work is required under any applicable Hazardous Materials laws, by any judicial
order, by any governmental entity, or in order to comply with any agreements affecting the Real
Property because of or in connection with any Hazardous Material Claims, CIM shall perform or
cause to be performed the Remedial Work in compliance with such Hazardous Material Laws or
tl ftreemcnt. All Remedial Work shall be performed by one or more contractors. selectee{ by CIM
and approved in advance in writing by Beneficiary, and under the supervision of a consulting
engineer. selected by CIM and approved in writing by Beneficiary. All costs and expenses of
such Remedial Work shall be paid by CIM, including, without limitation, the charges of such
contractors and/or the consulting engineer, and Beneficiary's reasonable attorneys' fees and costs
incurred in connection with monitoring or reviewing such Remedial Work. In the event CIM
Shall fail to timely commence or cause to be commenced, or fail to diligently prosecute to
completion. such Remedial Work, Beneficiary may, but shall not be required to, cause such
Rcrnedial Work to be performed, and all casts and expenses thereof' shall be duv and payable
upon demand therefor by CIM.
>lk)K•9UR67va - 1 3 - D"d ol'Trusl
(HunlingloO
Description: Orange,CA Document- Year. DocID 2009.516447 Page: 13 of 41
Order: 87998 Comment:
If during the term of the Loan, Beneficiary has reasonable cause to believe that
Hazardous Materials have migrated onto the Real Property or have otherwise come onto the Real
Property in violation of the terms of this Deed of Trust or there has been an Event of Default by
CIM hereunder with respect to Hazardous Materials, at Beneficiary's request, CIM shall retain,
at CIM's sole cost and expense, a licensed geologist, industrial hygienist or an environmental
consultant (a "Consultant") acceptable to Beneficiary to conduct an environmental site
assessment of the Real Property for the presence of Ha7ardous Materials ("f:nvironmental
Audit"), The Environmental Audit shall be performed in a manner reasonably calculated to
discover the presence of Hazardous Materials contamination. The Consultant shall concurrently
deliver the results of its investigation in writing directly to CIM and Beneficiary without prior
consultation with either party unless conducted in the presence of the other party.
If ('IM fails to pay for or obtain an tinvironmental Audit as provided for herein,
13enerciary may, but shall not be obligated to, obtain the Environmental Audit, and either
demand reimbursement from CIM or add the cost thereof to the indebtedness secured by this
Deed of' Trust. in which case interest shall accrue on such sum at the Default Interest rate set
florth in the loan Agreement. Furthermore, CIM hereby grants Beneficiary, its employees and
agents the right, exercisable at any time and at Beneficiary's sole cost and expense. to enter upon
the Real Property for the purpose of conducting an inspection, sampling and testing to determine
whether there have been any violations of the covenants contained in this Paragraph 12.
CIM's liability under this Paragraph 12 shall not terminate until the earlier of (i) the sale
of the Real Property pursuant to the enforcement of the lien of this Deed of "Trust, the proceeds
a which are applied to the indebtedness secured hereby, or (ii) the payment in full of the
indebtedness.
13. CIM agrees to indemnify, defend and hold harmless 'Trustee, Beneficiary and
Lenders from and against any and all losses, liabilities, suits, obligations, lines, damages,
.judgments, penalties, claims, charges, costs and expenses (including reasonable attorneys' fees
and disbursements) which may be imposed on, incurred or paid by or asserted against Trustee
and/or Beneficiary and/or any Lender by reason or on account of, or in connection with (a) any
willful misconduct of CIM or any Event of Default by CIM hereunder or under any other Loan
Document; (b) Trustee's and/or Beneficiary's good faith and commercially reasonable exercise
of any of their rights and remedies, or the performance of any of their duties hereunder or under
the other Loan Documents to which CIM is a party; (c) CIM's failure to perform or comply with
,any of the covenants set forth in Paragraph 12 above; (d) the construction, reconstruction or
alteration of' the heal Property; (e) any negligence of CIM, or any negligence or willful
misconduct of any lessee of the Real Property or any portion thereof, or any of their respective
agents, contractors, employees, licensees or invitees; or (1) any accidents, injury, death or
damage to any person or property occurring in, on or about the Real Property or any street, drive,
sidewalk, curb or passageway adjacent thereto, except to the extent resulting from the willful
misconduct or gross negligence of Beneficiary or Trustee. Upon demand by 'Trustee and/or
Beneficiary. CIM shall defend any action or proceeding brought against '1"rustee and/or
Beneficiary arising out of or alleging any claim or cause of action covered by this indemnity, all
at C'iM's own cost and by counsel to be approved by Beneficiary in the exercise of its reasonable
Judgment. In the alternative, Trustee and/or Beneficiary and/or any Lender may elect to conduct
its own delbnse at the expense of CIM. The provisions of this Paragraph 13 shall survive the
Ioreclosure or the delivery of a deed in lieu of foreclosure of this Deed of Trust or the payment in
nOOX,l0Xb7v4 - 14 - DtMd W ,Vmsl
tHunlingtunt
Description: Orange,CA Document -Year.DoclD 2009.516447 Page: 14 of 41
Order: 87998 Comment:
full of the indebtedness secured hereby and the termination and reconveyance of this Deed of
TrUSt, as the case may be. but shall not apply to events or conditions that first occur in the period
after such foreclosure sale, delivery of deed or reconveyance, as applicable.
Any amount payable to Trustee or Beneficiary or any Lender under Paragraph 12 or this
Paragraph 13 shall be due and payable immediately after demand therefor and receipt by CIM of
a statement setting forth in reasonable detail the amount claimed and the basis therefor, and such
amounts shall bear interest at the rate specified in Paragraph S hereof from and after the date
such amounts arc paid by Beneficiary or any Lender or Trustee, as the case may be, until paid in
full by CIM.
14, CIM shall not install materials, personal property, equipment. or fixtures subject
to any security agreement or other agreement or contract wherein the right is reserved to any
persun, firm or corporation to remove or repossess any such material, equipment or fixtures, or
whereby title to any of the same is not completely vested in CIM at time of installation, without
Beneficiary's written consent other than office copiers, fax machines and other sales or leasing
office equipment which require payments per annum of$18,000 or less.
15. Hach of the following is an "Event of Default" hereunder: (a) the failure by
l rustor to timely perform any of its obligations under this Deed of `trust or the Secured
Guaranty, including, without limitation, failure to timely pay amounts due and payable or
pertorm under any condition, covenant or agreement set forth herein or in the Secured Guaranty,
or (b) the occurrence of any Event of Default described in Paragraph 1 I and all subsections of
Paragraph 1 I of the Loan Agreement. Any cure periods herein shall run concurrently with
applicable cure periods under the Loan Agreement or any other Loan Document. Upon the
occurrence of any Event of Default, Beneficiary may take any action or pursue any right or
remedy permitted under applicable law specifically including, without limiting, impairing or
otherwise affecting its other rights and remedies, declare all sums secured hereby immediately
due and payable by delivery to 'Trustee written declaration of an Event of Default and demand
for sale and of written notice of an Event of Default and of election to cause to be sold the Real
Property, which notice Trustee shall cause to be filed for record. Beneficiary also shalt deposit
with 'trustee this Deed of Trust, the Secured Guaranty and all documents evidencing
expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation Of*
said notice of default, and notice of the sale having been given as then required by law. Trustee,
without demand on 'rrustor, shall sell the Real Property at the time and place Fixed by it in said
notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at
Public auction to the highest bidder for cash in lawful money of the United States, payable at
time of sale. Trustee may postpone sale of all or any portion of said Real Property by public
announcement at such time and place of sale, and from time to time thereafter may postpone
such stile by public announcement at the time fixed by the preceding postponement. Trustee
shall deliver to .such purchaser its deed conveying the Real Property so sold, but without any
covenant or warranty, express or implied, The recitals in such deed of any matters or facts shall
be conclusive proof of the truthfulness thereof. Any person, including Trustor. Trustee. any
Lender or Beneficiary, may purchase at such sale,
t,017%dUtS6'h•9 - 1S- Icedof'rnut
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Description: Orange,CA Document-Year.DoclD 2009,526447 Page: 15 of 41
Order: 67998 Comment:
After deducting all costs, fees and expenses of Trustee and of this Trust, including; cost of
evidence of* title in connection with sale, Trustee shall apply the proceeds of sale to payment of
all sums expended under the terns hereof, not then repaid, with accrued interest at the rate
specified in Paragraph 5 hereof; all other sums then secured hereby; and the remainder, if any, to
the person or persons legally entitled thereto.
If the loan Agreement (including without limitation Paragraphs 3.9 - 3.11 of the Loan
Agreement) provides for any charge for prepayment of any indebtedness that is guaranteed
pursuant to the Secured Guaranty, CIM agrees to pay said charge if any of said indebtedness
shall be paid prior to the date thereof stated in the Loan Agreement, even if and notwithstanding
CIM shall have defaulted in payment thereof, or in performance of any agreement hereunder, and
Beneficiary, by reason thereof, shall have declared all sums secured hereby immediately due and
payable.
Agency expressly agrees that the Agency Interest is subject to all of such rights and
remedies upon the occurrence of an )event of Default.
16. hollowing recordation of a notice of default, Beneficiary and prospective bidders
at any foreclosure sale shall have the right to enter and inspect said Real Property at reasonable
times and upon reasonable notice to Trustor. CIM shall, promptly following the recordation of a
notice of default, but in any event prior to the date of sale set in the notice of sale, disclose Lo
Beneficiary in writing all material facts regarding said Real Property.
CIM hereby waives any claims against Beneficiary, any Lender or "Trustee arising out of
or in connection with any disclosures regarding said Real Property which may be made by
Beneficiary, any Lender or Trustee to prospective bidders at or prior to the foreclosure sale, to
the extent that the disclosures are based on any information provided to Beneficiary or any
Lender, by CIM, Guarantor, Borrower and any employee, officer, agent or consultant of CIM,
Borrower or Guarantor or of any of their constituent entities (collectively. the "Borrower
Sources"), In addition, CIM shall indemnify, defend and hold harmless Trustee and Beneficiary
from and against all losses, liabilities, suits, damages claims or judgments which may arise out of
or in connection with any disclosures regarding said Real Property which may be made by
Beneficiary, any Lender or Trustee to prospective bidders at or prior to the foreclosure sale,
based on information received from any of the Borrower Sources. All costs, fees and expenses
incurred by Beneficiary, any Lender or Trustee in connection with such inspections and
disclosures shall be payable by CIM upon demand therefor, and such amounts shall bear interest
at the rate specified in Paragraph 5 hereof (irom the date paid by Beneficiary or I..ender until paid
in Cull by CIM. and if'not so paid shall be added to the amount secured hereby.
17. 11' the Trustor, or any subsequent owner of any interest in the Real Property
covered hereby, shall occupy such Real property, or any part thereof, alter an P.vent of Default.
then CIM, or such owner, shall pay to the Beneficiary, for the account of Lenders, in advance on
the first day of each month a reasonable rental for the premises so occupied, and upon failure to
pay such reasonable rental, the Trustor, or such owner, may be removed from said premises by
summary dispossess proceedings or by any other appropriate action or proceeding,
18. (a) CiM hereby represents and warrants: (i) that it is or will be the lawful
owner oi'all of the interests in the Real Property described herein (except the Agency Interests)
GUUR408b7v4 16- Ihud of 'fmsl
I H unnnglon
Description: Orange,CA Document- Year. Doc7D 2009.516447 Page: 16 of 41
Order: 87998 Comment:
and all other portions of the Trust Estate (except the Agency Interests), free of all claims, liens or
encumbrances whatsoever, other than the security interests granted pursuant hereto and such
other matters as may be approved in writing by Beneficiary in Beneficiary's sole and absolute
discretion; (J) all information, including but not limited to financial statements furnished by CIM
to Beneficiary heretofore or hereafter, whether oral or written, is and will be correct and true as
of the date given; and (iii) the execution, delivery and performance hereof are within CIM's
powers and have been duly authorized.
(b) Agency hereby represents and warrants: (i) that it is the lawful owner (if all of the
Agency Interests, free of all claims, liens or encumbrances whatsoever, other than the security
interests granted pursuant hereto and such other matters as may be approved in writing by
Benefreiary in Beneficiary's sole and absolute discretion; and (ii) Agency will not place or
permit any lien or encumbrance on the Agency Interest; and (iii) the execution, delivery and
perf'orrnance hereol'are within Agency's powers and have been duly authorized.
19. With respect to the Personal Property and the security interest granted to
Beneficiary. for the benefit of the Lenders, under the Deed of Trust, the following shall apply:
(a) C[M shall: (i) deliver such financing statements and execute such other
documents and do such other acts and things, all as Beneficiary may from time to tirne require, to
establish and maintain a valid security interest in the Personal Property, including payment of all
costs and fees in connection with any of the foregoing when reasonably deemed necessary by
Beneficiary and CIM hereby authorizes Beneficiary to file financing statements and continuation
statement~ in any applicable jurisdiction, covering "all assets" of CIM. including without
limitation, all Property described in this Deed of Trust; (ii) keep the Personal Property separate
and identifiable and tit the location described herein and permit Beneficiary and its
representatives to inspect the Personal Property and/or records pertaining thereto from time to
time during normal business hours; (iii) at CIM's expense upon Beneficiary's request remove
any unauthorized lien or security interest and defend any claim affecting the Personal Property;
(iv) reimburse Beneficiary for any expenses including but not limited to reasonable attorneys'
fees and legal expenses, incurred by Beneficiary in seeking to protect, collect or enforce any
rights in the Personal Property; (v) maintain the Personal Property in good condition and not use
the Personal Property for any unlawful purpose; and (vi) at its own expense, upon request of
Bcnt:liciary, during the existence of any Event of Default, notify any parties obligated to CIM on
ariv of the Personal Property to make payment to Beneficiary, and CIM hereby irrevocably
grants Beneficiary po\,,•cr of attorney to make said notifications and collections. CIM does
hereby authorize Beneficiary to perform any and all acts which Beneficiary in good faith deems
necessary for the protection and preservation of the Personal Property or its value or
13cneficiary's security interest therein, including transferring any of the Personal Property into its
own name and receiving the income thereon as additional security hereunder,
(b) Whenever an Event of Default exists under this Deed of Trust, Beneficiary. at its
option may: (i) transfer any of the Personal Property into its own name, the names oft,enders or
Ow name of its nornince; (ii) notify any parties obligated on any of the Personal Property
consisting of accounts. instruments, chattel paper. chooses in action or the like to make payment
to Beneficiary and enlurce collection of any of the Personal Property herein. (iii) require CIM to
assemble and deliver any of the Personal Property to Beneficiary at a reasonably convenient
Place designated by Beneficiary. No delay on the part of Beneficiary in the exercise of any right
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or remedy shall constitute a waiver thereof and any exercise, or partial exercise, by Beneficiary
of eery right or remedy under this Paragraph 19 shall not preclude the exercise of any other right
or remedy of Beneficiary under this Paragraph 19. this Deed of Trust or at law or in equity or the
further exercise of the same remedy. This Paragraph 19 shall not be construed to derogate or
impair the lien or provisions of any other provision of this Deed of T►ltst with respect to any
property described in this Deed of Trust that is real property or which the parries have agreed to
treat as real property. Beneficiary's rights, power and remedies as to the Personal Property shall
be exercisable as to any part or all of the Personal Property as Beneficiary may elect.
(c) CiM hereby assumes, and releases Beneficiary and Lenders from. all risk of loss.
destruction or damage to all or any part of the Personal Property by reason of any casualty or
cause whatsoever (except to the extent found by a court of competent jurisdiction to be caused by
the intentional misconduct or gross negligence of Beneficiary or any Lender), and CIM shall
indemnify and hold Beneficiary and Lenders harmless from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses (including,
reasonable attorneys' fees and costs) imposed upon or incurred by or asserted against
Beneficiary or any Lender by reason of (i) any failure by CIM to perform or comply with the
terms of this Deed of' I'rust or (ii) the exercise by Beneficiary of any rights or remedies provided
hereunder or at law or in equity, except to the extent caused by Beneficiary's ur any Lender's
intentionai misconduct or gross negligence.
(d) Upon transfer by Beneficiary of its obligations, as Agent for benders, Beneficiary
shall be fully discharged from all liability with respect to the Personal Property transferred
therewith.
(c) The grant of a security interest in proceeds, replacements, substitutions or the like
does not imply any right of CIM to sell or dispose of any Personal Property described herein
without the express written consent by Beneficiary.
20. The rights set forth in this section are in addition to Beneficiary's rights of
enforcement with respect to all or any portion of the 'trust Estate in accordance with the
procedures for Foreclosure of real estate. Beneficiary may exercise rights of enforcement with
respect to all or any portion of the Trust Estate under the UCC and in conjunction with. in
addition to or in substitution for those rights and remedies, all of the following provisions shall
be cfiective:
(a) After the occurrence of an Event of Default, Beneficiary may enter upon Trustor's
premises to take possession of, assemble and collect the Trust Estate or, to the extent and for
those items of the TrUSI (:state permitted under applicable law, to render it unusable.
(b) Written notice mailed to "Trustor as provided herein at least ten (10) days prior to
the date of public sale of the "Trust Estate or prior to the date on which private sale of the!'rust
latatc will be made shall constitute reasonable notice; provided that, if Beneficiary fails to
comply with this clause (b) in any respect, its liability for such failure shall be limited to the
liability (if any) imposed on Beneficiary as a matter of law under the UCC,;.
(c) Any sale made pursuant to the provisions of this Section shall be deemed to have
been a public sale conducted in a commercially reasonable manner if held contemporaneously
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with and upon the same notice as required for the sale of the Trust Estate under power of sale as
provided in this need oi'Trust,
(d) In the event of a foreclosure sale, whether made by Trustee under the terms of this
Deed of Trust, or under judgment of a court, the Trust Estate and other Trust Estate may, at the
option of Beneficiary, for the benefit of Lenders, be sold as a whole.
(c) it shall not be necessary for Beneficiary to take possession of the Trust l state or
any part thereof' prior to the time that any sale pursuant to the provisions of this Section is
conducted and it shall not be necessary for the Trust Estate or any part thereof to be present at
the location of'such sale.
(I) With respect to application of proceeds from disposition of the Trust Estate, the
costs and expenses incident to disposition shall include the reasonable expenses of retaking. .
holding, preparing for sale or lease, selling, leasing and the like and the reasonable attorneys'
ices and legal expenses incurred by Beneficiary.
(g) Any and all statements of fact or other recitals made in any bill of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to non-payment of
the obligations secured hereby or as to the occurrence of any Event of Default. or as to
Beneficiary or the tenders having declared all of such indebtedness to be due and payable, or as
to notice of time, place and terms of sale and of the properties to be sold having been duly given,
or as to. any other act or thing having been duly clone by Beneficiary, shalt be taken as prima
facie evidence of the truth of the facts so stated and recited.
(h) Beneficiary may appoint or delegate one or more persons to perform any act or
actS necessary or incident to any sale held by Beneficiary, including the sending of notices and
the applicable state or local law or regulatory requirements in connection with a disposition of
the Crust Estate, and such compliance will not be considered to affect adversely the commercial
reasonableness of any sale of the Trust Estate.
(1) Beneficiary, for the benefit of Lenders, may sell the Trust Estate without giving
anv warranties as to the Trust Estate, and may specifically disclaim any warranties of title,
merchantability, fitness for a specific purpose or the like, and this procedure will not be
considered to affect adversely the commercial reasonableness of any sale of the Crust Estate.
(j) l rustor acknowledges that a private sale of the Trust Fstate may result in less
proceeds than a public sale.
(k) Trustor acknowledges that the Trust Estate may be sold ut a loss to Trustor, and
that in such event Beneficiary and Lenders shall not have any liability or responsibility to "Trustor
for such loss.
21. Trustor authorizes Beneficiary to authenticate any record regarding all or any
portion of the Trust Estate, including, without limitation, a financing statement that covers "all
assets" of CIM and to file any financing statement covering all or any portion ol'the Trust Fstate.
11' required by Beneficiary at any time during the term of this Deed of Trust, CIM will execute
and deliver to Beneficiary, in form satisfactory to Beneficiary, an additional security agreement
andlor Imancine. statement covering all Personal Property of CIM which may at any time be
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furnished, placed on, or annexed or made appurtenant to the Property and used, useful or held for
use in the operation of the Improvements.
22. 11' CIM is at any time a beneficiary under a letter of credit relating to all or any
portion of the Trust ]:state, CIM shall promptly notify Beneficiary thereof. At Beneficiary's
request, and pursuant to an agreement in form and substance satisfactory to Beneficiary, CIM
shall either (a) arrange for the Issuer and any confirmer of such letter of credit to consent to an
assignment to Beneficiary of the proceeds of any drawings under the letter of credit, or
(b) arrange for Beneficiary to become the transferee beneficiary of the letter of credit, or
(c) execute and deliver any other documentation requested by Beneficiary to perfect
Beneficiary's security interest in the letter of credit and all rights to payment thereunder.
23. Beneficiary, acting alone, may from time to time, by instrument in writing,
substitute a successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed and acknowledged by each and recorded in the office of the recorder ofthe
county or counties where said property is situated, shall be conclusive proof of proper
substitution of such successor "trustee or Trustees, who shall, without conveying from the
Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument
must contain the: name of the original Trustor, 'Trustee and Beneficiary hereunder, the book and
page or document number where this Deed of Trust is recorded, and the name and address of the
new "Trustee, If a notice of default shall have been recorded, this power of substitution cannot be
exercised until after the costs, fees and expenses of the then acting Trustee shall have been paid
to such 'Trustee, who shall endorse receipt thereof upon such instrument of'substitution.
211. Any Trustur who is a married person hereby expressly agrees that recourse may
he had against his or her separate property, but without hereby creating any lien or charge
(hereon. For any deficiency after sale of the property hereunder.
25. CIM shall deliver financial statements and reports to Agent as and when required
in Paragraph 10.5 of the ].roan Agreement. CIM shall keep true and correct records upon which
annual statements are based for not less than three (3) years after delivery of the required annual
statement. Benefichiry, and Lenders shall have the right, at their own cost and at any time and
from time to tirr►c alter giving prior written notice to CIM, to do or cause to be done any of the
following: to audit the records; to cause an audit of the records to be made; to make abstracts
I'min the records; to make copies of any or all of the records; to examine any or all purchase
agreements, closing statements, leases, subleases, sub -subleases and rental agreements (il' such
leases and rental agreements exist); and to make copies of any or all leases, subleases, sub-
,ublcases and rental agreements (to the extent such purchase agreements. closing statements,
louses, subleases, sub -subleases and rental agreements exist), CIM shall make all records
specified in the notice available at the time specified in the notice and at the place where the
records are customarily kept, or at Beneficiary's option at Beneficiary's office, Upon any Event
of Default under the Secured Guaranty, this Deed of Trust or other loan Documents, Beneficiary
may perform any of the acts authorized by this paragraph at the sole cost oC C'IM. CIM shall
promptly reimburse 1eneficiary for its costs and such costs shall be secured by this Deed of
Trust.
26. The pleading of any statute of limitations as a defense to any and all obligations
secured by this Deed of Trust is hereby waived to the full extent permissible by law.
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27, 'this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto
and Lenders, their heirs, legatees, devisees, administrators, executors, successors and assigns.
The term Beneficiary shall mean Agent for the owners and holders, including pledgees, of the
Secured Guaranty, whether or not named as Beneficiary herein. In this Deed of'Trust. whenever
the context so requires. the masculine gender includes the feminine and neuter, and the singular
number includes the plural. Agency is liable for Agency's obligations under the Deed of "Trust.
CIM is jointly and severally liable for all the obligations of Truster.
28. CIM agrees that Beneficiary or any Lender may provide any financial or other
information, data or material in Beneficiary's or such Lender's possession relating to CIM, the
Loan, this Deed of"Trust, the Property or the improvements, to Beneficiary's or such Lender's
parent, affiliates. subsidiaries, assignees, participants or service providers, without further notice
to CIM, subject to the provisions of Section 17.8 of the Loan Agreement.
29. 'I"rustee accepts this Trust when this Deed of Trust., duly executed and
acknowledged, is made a public record as provided by law, Trustee is not obligated to notify any
party hereto of pending sale under any other deed of trust or of any action or proceeding in which
Trustor, Beneficiary or Trustec shall be a party unless brought by Trustee.
30. C:IM agrees to pay Beneficiary and each Lender for each and every beneficiary
statement furnished at CiM's request the maximum fee allowed by law and if there be no
maximum, then in accordance with Beneficiary's schedule therefor. Such fee shall be computed
as of the time said statement is furnished.
31. That. except as expressly permitted in the Secured Guaranty or the Loan
Agreement. should CIM or Agency sell, convey, transfer, dispose of or further encumber the
Trust Estate or any part thereof or any interest therein or enter into a lease, subleases, sub -
subleases covering all or any portion thereof in violation of the terms of the Loan Agreement or
this Deed of'1'rust, or an undivided interest therein, either voluntarily, involuntarily or otherwise,
without the prior written consent of Beneficiary being first had and obtained, then Beneficiary
may, at its option, declare all sums secured hereby immediately due and payable. Consent to one
such transaction shall not be deemed to be a waiver of the right to require such consent to future
or successive transactions, A Permitted Transler, as defined in the f,.oan Agreement is not
prohibited by this paragraph. Permitted Transfers shall include without limitation a transfer from
Agc;ncy of the Agency Interest to City, subject to the lien of this Deed of Trust.
32. Except for Pennitted Transfers (as defined in the Loan Agreement), should there
uccur (A) a sale, conveyance, transfer, disposition or encumbrance, either voluntary or
involuntary, or should an agreement that is not conditioned on Beneficiary's consent to transfer
or the satisfaction of the conditions for release in the Loan Agreement be entered into to
accomplish any thereof, with respect to (i) more than ten percent (10%) of the issued and
Outstanding capital stock of CIM if CIM is a corporation or (H) beneficial interest of CIM if CIM
is a trust or (iii) any general partnership or joint venture interest if CIM is a limited or general
partnership or a joint venture, (iv) any membership interest if CIM is a limited liability company,
or (B) a change in any general partner or joint venturer if CiM is a limited or general partnership
or a joint venture. then Beneficiary may, at its option, declare all sums secured hereby
immediately due and payable unless Beneficiary shall have given its prior written consent
thereto. Consent to one such transaction shall not be deemed to be a waiver of the right to
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require such consent to future or successive transactions. A Permitted Transfer, as defined in the
Loan Agreement, is not prohibited by this paragraph.
33. in the event of the passage after the date hereof of any law deducting from the
value ol'real property, for taxation purposes, any lien thereon or changing in any way the laws
now in force for the taxation of deeds of trust or debts whether or not secured thereby for federal.
state or local purposes or the manner of the collection of any such taxes so as to affect this Deed
of —Trust or the obligations hereby secured, CIM agrees to pay the same and if CIM fails to so do
or if' it would be illegal for CIM so to do then, the whole of the principal sum secured by this
Deed of -rust, together with accrued interest thereon shall, at the option of' Beneficiary. without
demand or notice. immediately become due and payable.
34, To the fullest extent permitted by law, Trustor hereby waives the provisions of
Section 431,70 of the California Code of Civil Procedure and all amendments thereto.
35. No remedy herein conferred upon, reserved to Trustee or Beneficiary or any
Lender is intended w be exclusive of any other remedy herein or by law provided, but each shall
IN cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. No delay or omission of Trustee or Beneficiary or any
Lender in the exercising of any right or power accruing upon any Event of Default shall impair
such right or power or any other right or power nor shall the same be construed to be a waiver of
any Event of Default or any acquiescence therein. Every power and remedy given by this Deed
of Trust to Trustee, Beneficiary or Lenders may be exercised from time to time as often as may
be deemed expedient by Trustee, Beneficiary or Lenders. If there exists additional security for
the obligations secured hereby, Beneficiary, at its sole option, and without limiting or affecting
any of the rights or remedies hereunder, may exercise any of the rights or remedies to which it
may be entitled hereunder either concurrently with whatever rights it may have in connection
with such other security or in such order and in such manner as Beneficiary may deem lit
without waiving; any rights with respect to any other security. The granting of consent by
Beneficiary to any transaction as required by the terms hereunder shall not be deemed a waiver
ul'the right to secure the consent of Beneficiary to Future or successive transactions.
36, In the event any one or more of the provisions contained in this Deed of "Trust or
in the Secured Guaranty or Loan Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Deed of Trust or the Secured Guaranty and Loan Agreement, but this
Deed of 'trust and the Secured Guaranty and Loan Agreement shall be construed as it' such
invalid, illegal or unenforceable provision had never been contained herein or therein.
37. CIM ACKNOWLEDGE(S) AND AGREE(S) THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT OR THE [.ENDING RE LAT1ONSt-iJl'
► S'1'ABLISHED HEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX
ISSUES, AND TIT iR.I3FORE, CIM HEREBY WAIVE(S) ANY RIGHT 'TO A l'RIAL BY
JURY IN ANY ACTION OR PROCEEDING (INCLUDING ACTIONS SOUNDING IN
"1010) TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS DEED OF TRUST OR
ANY OTHER LOAN DOCUMENT OR ARISING FROM THF' TRANSACTION
CONTI:MPLA"I'l-D HEREUNDER OR THE LENDING RELATIONSHIP ESTABLISHED
111`.[VBY ANT) AGREE(S) THAT ANY SUCH ACTION OR PROC1:?I'-1J)lNQ SHALL 131-
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'I RIH,D IN A COURT OF COMPETENT JURISDICTION BY A JUDGE, AND NOT BY A
JURY.
38, This Deed of Trust has been executed and delivered.in the State of California and
is to be construed and enforced according toand governed by the laws thereof except that with
respect to any portion of the Trust Estate covered hereby located outside of the State of
California, only to the extent required for Trustee or Beneficiary or any lender to enforce or
realize upon the rights and remedies hereunder with respect thereto, the laws of the state in
which such property is located shall be applicable hereto,
39. Notwithstanding anything to the contrary elsewhere contained herein or in any
Loth Document to which CIM is a party, the aggregate liability of CIM under this Deed of Trust
and the Secured Guaranty for payment and performance of the obligations under the Secured
Guaranty and this Deed of Trust shall not exceed an amount which, in the aggregate, is One
Thousand Dollars ($1,000) less than that amount which, if so paid or performed, would
constitute or result in a fraudulent conveyance, or terms of similar import, under applicable state
or iederal law, including, without limitation, Section 548 of the United States Bankruptcy Code.
40. Representations: Warranties; Covenants. CIM hereby represents, warrants and
covenants that:
(a) { I) 'l he Ground Lease and the Subground Lease are each unmodified and in Full
force and effect., (2) all rent and other charges therein have been paid to the extent they are
payable to the date hereof, (3) CIM enjoys the quiet and peaceful possession of the Real
Property, (4) CIM is not in default under any of the terms of the Ground Lease or the Subground
Lease, and there are no circumstances which. with the passage of time or the giving of notice or
both, would constitute all event of default under either the Ground Lease or the Subground
Lease, (5) to the best of CIM's knowledge after diligent inquiry, Cracchiolo Trust is not in
default tinder any of the terms or provisions of the Ground Lease;
(b) CIM shall promptly pay or cause to be paid, when due and payable, the rent and
other charges payable pursuant to the Ground Lease and the Subground Lease, and will timely
perform and observe or cause to be timely performed and observed all of the other terms,
covenants and conditions required to be performed and observed by CIM as lessee under the
S ubgrourid lease and Frustor as tenant under the Ground Lease;
(c) CfM shall notify Agent in writing of any written notice of default from the
applicable landlord with respect to a default by CIM or by Trustor in the .performance or
observance of any terms, covenants or conditions on the part of CiM or Trustor, as applicable, to
be performed or observed under the Subground Lease or the Ground Lease, within three (3)
business days aPter'I'rustor receives such written notice;
(d) ' CIM shall, immediately upon receipt thereof, deliver a copy of each notice given
to Trustor by the Cracchiolo Trust under the Ground Lease or by CiM under the Subground
(.case and promptly notify Agent in writing of` any default by the Cracchiolo Trust under the
Ground tease or by I rustor under the Subground Lease in the performance or observance ut' any
of the material terms, covenants or conditions on the part of the Cracchiolo ")'rust under the
Ground Lease or Trustor under the Subground Lease, as applicable;
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(e) Unless required under the terms of the Ground Lease or the Subground Lease,
Trustor shall not, without the prior written consent of Agent (which may be granted or withheld
in Agent's sole and absolute discretion) terminate, modify in any material respect, or surrender
the Ground Lease or the Subground Lease, and any such attempted termination, material
modification or:,urrender without Agent's written consent shall be void; and
(f) CIM shall, within twenty (20) days after written request from Agent, use its
commercially reasonable good faith efforts to obtain from the Cracchiolo "Trust under the Ground
Lease and deliver to Agent a certificate setting forth the name of the tenant under the Ground
Lease and the Subground lease and stating that the Ground Lease or the Subground Lease, as
applicable, is in full force and.effect, is unmodified (or, if' the Ground Lease or the Subground
]_ease, as applicable, has been modified, the date of each modification (together with copies of
each such modification)), that no notice of termination thereof' has been served on Trustor, or
CIM, that no default or event which with notice or lapse of time (or both) would become a
default is existing under the Ground Lease or the Subground Lease, as applicable (or if any such
del'ault or event is existing, specifying the nature of such default or event), the date to which rent
has been paid, and containing such other statements and representations as may be requested by
Agent.
41, No Merger. So long as any of the indebtedness secured hereby ("Secured
Indebtedness") remains unpaid or unperformed, the fee title to and the leasehold estate in the
(teal Properly subject to the Ground lease and the Subground Lease shall not merge but shall
always be kept separate and distinct notwithstanding the union of such estates in the Cracchiolo
Trust, CIM or `I'rustor, or in a third party, by purchase or otherwise. If CIM acquires the fee title
or any other estate, title or interest in the Real Property, or any part thereof or interest therein,
then the lien of this Deed of Trust shall attach to, cover and be a lien upon such acquired estate,
title or interest and the same shall thereupon be and become a part of the Property with the same
!thee and effect as ii'specifically encumbered herein. CIM agrees to execute all instruments and
documents that Agent may reasonably require to ratify, confirm and further evidence the lien of
this Deed of [rust on the acquired estate, title or interest. Furthermore, CIM hereby appoints
Agent as its true and lawful attorney -in -fact to execute and deliver, during the continuance ol'an
I'.vent of ieluult, all such instruments and documents in the name and on behalf of CIM. This
power, being coupled with an interest, shall be irrevocable as long as any portion ol'the Secured
Indebtedness remains unpaid,
42. A,.gent as Lessee. If the Ground Lease or the Subground Lease shall be terminated
prior to the natural expiration of its term due to default by Trustor or any tenant thereunder, and
it', pursuant to the provisions of the Ground Lease or the Subground Lease, Agent or its designee
shall acquire from the Cracchiolo Trust or the Trustor, as applicable, a new lease of the heal
Property, Trustor shall have no tight, title or interest in or to such new lease or the Icasehold
estate created thcrehy, or renewal privileges therein contained.
43. No Assignment. Notwithstanding anything to the contrary contained herein, this
Deed of "frost shall not constitute an assignment of the Ground Lease or the Subground [.ease
within the meaning of any provision thereof prohibiting its assignment and Agent Shall have no
liability or obligation thereunder by reason of its acceptance of this Deed of Trust.
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44. Transfer.. or Assigranent of Agency's Interest in the Ground Lease,
Notwithstanding Section 41 or any other provision of this Deed of Trust, if Agency's interest in
the Ground Lcase shall be transferred or assigned to CIM with the prior written consent of Agent
(not to be unreasonably withheld, conditioned or delayed), then following such transfer or
assignment, any and all obligations of Agency under this Deed of Trust shall immediately and
automatically thereafter cease, and CIM and Agent agree to execute any documents reasonably
required by Agency in connection with such transfer or assignment, including an amendment to
this Deed of "trust removing Agency as a trustor hereunder from and after the date of such
transfer. Any transfer or assignment of Agency's interest in the Ground Lease to any party other
than CIM or Cily without the prior written consent of Agent shall be an Event of Default under
this Deed of Trust.
45. Ground lease Obligations. CIM agrees that provisions of this Deed of Trust
shall be deemed to be obligations of CIM in addition to CIM's obligations as lessee with respect
to similar matters contained in the Ground Lease or the Subground Lease; provided. however,
the inclusion herein of any covenants and agreements relating to similar matters under which
CIM is obligated under the Ground Lease or the Subground [.,Case shall not restrict or limit
('IM's duties and obligations to keep and perform promptly all of its covenants, agreements and
obligations as lessee: under the Ground Lease and Subground Lease, and nothing in this Deed of
'trust shall be construed as requiring the taking of or the omitting to take any action by Trustor or
13enetici8ry which would cause a default tinder the Ground Lease or Subground Lease.
46. Bankruptcy of Ground Lessor.
(a) CIM shall promptly after obtaining knowledge thereof notify Beneficiary orally of
any filing by or against any trustee of Cracchiolo Trust of a petition under the Bankruptcy Codc,
Ti 1 I of the United States Code (hereinafter, as the same may be arnended or recodificd from
tirrnc; to time. called the -Bankruptcy Code"), CIM shall thereafter forthwith give written notice
nl' such filing to Beneficiary, setting forth any information available to CIM as to the date of
such filing, the court in which such petition was filed, and the relief sought therein. CIM shall
promptly deliver to Beneficiary, following receipt, any and all notices, summonses, pleadings,
applications and other documents received by CIM in connection with any such petition and any
proceedings relating thereto, All references herein to "Cracchiolo Trust" or Trustee of
Cracchiolo Trust shall include all successors or assigns of such Cracchiolo "Trust that then own
the 4.505% undivided interest in the Land or Real Property or any portion thereof.
(b) CIM shall not commence any action, suit, proceeding or case, or file any
application or rnakc any motion in respect of the Ground Lease in any such case, under the
Bankruptcy Code without the prior written consent of Beneficiary.
M Trustor acknowledges that, pursuant to Section 365 of the Bankruptcy Code, it is
possible that a trustee in bankruptcy of a trustee of Cracchiolo Trust, or a trustee of Cracchiolo
']gust, as a debtor -in -possession, could -reject the Ground Lease, in which case Trustor, as lessee,
would have the election described in Section 365(h) of the Bankruptcy Code (which election, as
the same may be amended, revised or recodificd from time to time, and together with any
comparable right under any other state or federal law relating to bankruptcy, reorganization or
other relief' for debtors, whether now or hereafter in effect, is herein called the "Election") to
treat the Ground Lease as terminated by such rejection or, in the alternative. to remain in
nulls lUrili%v4 25 - Duw of !-rust
(rfun Imetim)
Description: Orange, CA Document-Year.DoclD 2009. 51644 7 Page: 25 of 42
Order: 87998 Comment:
possession for the balance of the term of such Ground Lease and any renewal or extension
thercol'that is enforceable by the lessee under applicable non -bankruptcy law. "Trustor covenants
that it will not suffer or permit the termination oft.he Ground Lease by exercise of the Election or
otherwise without the prior written consent of Beneficiary. Trustor acknowledges that, since the
Ground Lease is a primary part of Beneficiary's security for the obligations Secured under this
Deed of Trust, Beneficiary does not anticipate that it would consent to termination of the Ground
Lease and shall not under any circumstances be obliged to give such consent.
(d) in order to secure the covenant made in Section 46(c) and as security for the other
obligations secured under this Deed of Trust, Trustor assigns the Election to 'Trustee and
Beneficiary. Trustor acknowledges and agrees that the foregoing assignment of the Election is
one of the rights which Trustee and Beneficiary may use at any time in order to protect and
pre:sen,e the other rights and interests of Trustee and Beneficiary under this Deed of Trust, since
exercise of the Flection in favor of terminating the Ground Lease would constitute waste
hereunder.
(c) "1"rustor acknowledges and agrees that the Election is in the nature of a remedy
and is not a property interest which Trustor can separate from the Ground Lease. Therefore.
Trustor agrees that exercise of the Election in favor of preserving the right to possession under
the Ground Lease shall not be deemed to constitute a taking or sale of the Property by Trustee or
Beneficiary and shall not entitle Trustor to any credit against the obligations secured by this
Deed of'1'rust.
(1) Trustor acknowledges and agrees that, in the event the Election is exercised in
favor of'Frusior remaining in possession, Trustor's resulting right to possession and use of'(and
rents and profits from) the Real Property under the Ground Lease, as adjusted by the effect of
Section 365 of the Bankruptcy Code, whether or not all or any part of the Real Property has been
subleased, shall then be part of the Property and shall be subject to the lien created by this Deed
of TI'tlst. However, 'Trustor acknowledges and agrees that said right to possession and use of the
Land under the Ground Lease as so adjusted shall not be equivalent to the leasehold interest
which is included in the Property at the time of execution of this Deed of Trust.
(g) Tnrstor hereby unconditionally assigns, transfers and sets over to Beneficiary all
cif' Trustor's claims and rights to the payment of damages arising from any rejection by
t'racchiolo Trust. its assignee or trustee, of the Ground f_ease under the Bankruptcy Code.
Beneficiary shall have the right to proceed in its own name or in the name of Trustor in respect
of any claim, suit, action or proceeding relating to the rejection of the Ground lease, including,
without limitation, the right to file and prosecute any proofs of claim, complaints, motions,
applications, notices and other documents. This assignment constitutes a present, irrevocable
and unconditional assignment of the foregoing claims, rights and remedies, anti shall continue in
effect until all of the indebtedness and obligations secured hereby shall have been fully satisfied
and discharged, Any amounts received by Beneficiary as damages arising out of the rejection of
the Ground Leasc shall be applied first to all costs and expenses of Beneficiary (including.
without limitation, attorneys' fees) incurred in connection with the exercise ofany of its rights or
remedies under this Section 46 and then to the indebtedness secured hereby.
�unKaoxt ��a 2fi - Tnccd or•rrnst
(nunpnglon)
Description: Orange,CA Document-Year,DoolD 2009,516447 Page: 26 of 41
Order: 87998 Comment:
47, Bankruptcy of a Trustor.
(a) fl'there shall be filed by or against either Trustor a petition under the Bankruptcy
Code, and such Trustor, as lessee under the Ground Lease, shall determine to reject the Ground
Lease pursuant to the Bankruptcy Code, then such Trustor shall give Beneficiary not less than
ten (10) days' prior notice of the date on which such Trustor shall apply to the Bankruptcy Court
for authority to reject the Ground Lease, Beneficiary shall have the right, but not the obligation,
to serve upon Trustor within such ten-day period a notice stating that (i) Beneficiary demands
that Trustor assume and assign the Ground Lease to Beneficiary pursuant to Section 365 of the
Bankruptcy Code, and (ii) Beneficiary covenants to cure or provide adequate assurance of*
prompt cure of all defaults and provide adequate assurance of future performance under the
C;round Lease. If Beneficiary serves upon Trustor the notice described in the preceding
sentence, no 'Trustor shall seek the rejection of the Ground Lease and Trustor shall comply with
the demand provided for in clause (i) of the preceding sentence within thirty (30) days after the
notice shall have been given, subject to the performance by Beneficiary of the covengnt provided
tier in clause (ii) of the preceding sentence.
(b) Effective upon the entry of an order for relief in respect of any Trustor under the
Bankruptcy Code, Trustor hereby assigns and transfers to Beneficiary a non-exclusive right to
apply to the Bankruptcy Court for an order extending the period during which the Ground Lease
may be rejected or assumed.
48. Non -Grantor Trustor Provisions. The Following waivers and agreements arc
subject to applicable law, and are made by Agency solely for purposes of inducing Beneficiary to
accept the grant of security interest made herein by Agency as security for the obligations of
CIM, and only to the extent required therefor.
(a) Authority of Agent. As Agency is not a maker of a Note. Agency hereby
authorizes Agent to perform any of the following acts at any time and from time to time, all
without notice to Agency and without affecting Agent's rights or Agency's obligations under this
Deed of Trust: 0) alter any terms of the Loan Documents (other than this Deed of Trust to the
extent such alteration would increase the Agency's obligations or reduce its rights hereunder),
including renewing, compromising, extending or accelerating, or otherwise changing the time For
payment of or increasing or decreasing the rate of interest under, the Note or the Secured
Guaranty, (ii) take and hold security for the Loan Documents, accept additional or substituted
security For the Loan Documents, and subordinate, exchange, enforce, waive, release,
compromise, fail to perfect, sell or otherwise dispose of any such security. (iii) apply any
security now or later held for the Loan Documents in any order that Agent in its sole discretion
may choose, and direct the order and manner of any sale of all or any part of ii and bid at any
such sale. (iv) release any obligor under the Note or any of the other Loan Documents, including
without limitation CIM or any other Owners (as defined in the Loan Agreement) (each, for
purposes of this Section 48, an "Obligor") of its liability under any Loan Document, and/or
(v) substitute, add or release any one or more guarantors or endorsers of the Loan Documents,
Notwithstanding the foregoing, but without limiting the obligations of CIM hereunder and under
the Loan Documents, no modification or alteration of any of the Loan'Documents made without
the consent of Agency shall be binding upon Agency to the extent that the same would increase
Agency's obligations or reduce its rights hereunder.
nir.)K IUKi{h +l - 27 - Ixxd of If list
Description: Orange,CA D00ume4t—Bear.D0C1D 2009.516.447 Page: 27 of 41
Order: 87998 Comment:
(b) Waivers of Agency. Agency absolutely; unconditionally, knowingly, and
expressly waives:
(i) (1) notice of acceptance hereof; (2) notice of any loans or other financial
accommodations made or extended under this Deed of Trust and the Loan Documents to which it
is a party or the creation or existence of any Secured Indebtedness; (3) notice of the amount.of
the Secured Indebtedness, subject, however, to Agency's right to make inquiry of Agent to
ascertain the amount of the Secured Indebtedness at any reasonable time., (4) notice of any
adverse change in the financial condition of CIM, Borrower, any Owner or of any other fact that
might increase Agency's risk hereunder; (5) notice of presentment for payment, demand, protest.
and notice thereof as to any instruments among the Loan Documents to which the Agency is a
party; (b) notice of any Event of Default; and (7) all other notices (except, in each case, if such
notice is specifically required to be given to Agency hereunder or under the Loan Documents to
which the Agency is a party) and demands to which Agency might otherwise be entitled;
(ii) its right, under Sections 2845 or 2850 of the Calii'(:)rnia Civil Code, or
otherwise, to require Agent to institute suit against, or to exhaust any rights and remedies which
Agent has or may have against, CIM, Borrower or any Owner or any third party, or against any
collateral for the Secured Indebtedness provided by CIM, Borrower or any Owner or any third
party. Agency further waives any defense arising by reason of any disability or other defense
(other than the defense that the indebtedness shall have been fully and finally performed and
indefeasibly paid) of CIM, Borrower or any Owner or by reason of the cessation from any cause
whatsoever ol'the liability of CIM, Borrower or any Owner in respect thereof:
(iii) (I) any rights to assert against Agent any defense (legal or equitable), set-
off, counterclaim, or claim which the Agency may now or at any time hereafter have against
CIM, Borrower or any Owner or any other party liable to Agent; (2) any defense, set-off,
counterclaim, or claim. of any kind or nature, arising directly or indirectly from the present or
I'lnUre lack of perfection, sufficiency, validity, or enforceability of the Secured Indebtedness or
any security therefor; (3) any defense the Agency has to performance hereunder, and any right
the Agency has to be exonerated, provided by Sections 2819, 2822, or 2825 of the California
Civil Code, or otherwise, arising by reason of: the impairment or suspension of Agent's rights or
remedies against CiM, Borrower or any Owner; the alteration by Agent of the Secured
Indebtedness; any discharge of CIM. Borrower or any Owner's obligations to Agent by operation
of law as a result of Agent's intervention or omission; or the acceptance by Agent of anything in
parlial satisfaction of the Secured Indebtedness; and (4) the benefit of any statute of limitations
uffieting CIM's or Agency's liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations applicable to the Secured
Indebtedness shall similarly operate to defer or delay the operation of such gatutc of limitations
applicable to C1M's liability hereunder.
(iv) any defense arising by reason of or deriving from (1) any claim or defense
based upon an election of remedies by Beneficiary including any defense based upon an election
of remedies by Beneficiary under the provisions of Sections 580a, 580b, 580d, and 726 of the
California Code of Civil Procedure or any similar law of California or any other jurisdiction: or
(2) any election by Agent under Section 1 I I I (b) of the Bankruptcy Code to limit the amount of',
or any collateral securing, its claim against CIM, Borrower or any Owner:
600RA08070 - 28 - Duod ul' rrum
(I minptun)
Description: Orange,CA Document-Year.DOC2D 2009.516447 Page: 28 of 41
Order: 87998 Cov=ant:
(v) Pursuant to California Civil Code Section 2856(b):
(1) Agency waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed Agency's rights of subrogation
and reimbursement against CiM, Borrower or any Owner by the operation of Section 580d of the
California Code of Civil Procedure or otherwise;
(2) Agency waives all rights and defenses that Agent may have
because the Secured Indebtedness is secured by real property. This means, among other things:
(1) Agent may collect from CIM, Borrower or any Owner without first foreclosing on any real or
personal property collateral pledged by CIM, Borrower or any Owner; and (2) it' Agent
lbrecloses on any real property collateral pledged by CIM, Borrower or any Owner: (A) the
amount of the Secured Indebtedness may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (13) Agent
milt' collect from CiM, Borrower or any Owner even if Agent, by foreclosing on the real
property collateral, has destroyed any right Agency may have to collect from CIM, Borrower or
any Owner. This is an unconditional and irrevocable waiver of any rights and defenses Agency
may have because the Secured Indebtedness is secured by real property. These rights and
defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b,
580d, or 726 of the California Code of Civil Procedure,
(3) if any of the Secured Indebtedness at any time is secured by a
mortgage or deed oi' trust upon real property. Agent may elect, in its sole discretion, upon a
default with respect to the Secured indebtedness, to foreclose such mortgage or deed of trust
judicially or nonjudicially in any manner permitted by law, before or after enforcing this Deed of
Trust and the Loan Documents, without diminishing or affecting the liability of Agency
hereunder except to the extent the Secured Indebtedness is repaid with the proceeds of such
foreclosure. Agency understands that (a) by virtue of the operation of California's antideficiency
law applicable to nonjudicial foreclosures, an election by Beneficiary nonjudicially to foreclose
such a mortgage or deed of trust probably would have the effect of impairing or destroying rights
of subrogation, reimbursement, contribution, or indemnity of Agency against CIM. Borrower or
nny Owner or other guarantors or sureties, and (b) absent the waiver given by Agency, such an
election would prevent Agent from enforcing this Deed of Trust and the Loan Documents to
which Agency is a party against Agency. Understanding the foregoing, and understanding that
Agency is hereby relinquishing a defense to the enforceability of this Deed of Trust and the loan
Documents to which Agency is a party, Agency hereby waives any right to asserl against Agent
any defense to the enforcement of this need of Trust and the I,oan Documents to which Agency
is it party, whether denominated "estoppel" or otherwise. based on or arising from an election by
Agent nonjudicially to foreclose any such mortgage or deed of trust. Agency understands that
the effect of the foregoing waiver may be that after exercise of remedies by Agent, Agency may
he left without rights of subrogation, reimbursement, contribution, or indemnity against any
Obhoor or other guarantors or sureties. Agency also agrees that the "fair market value"
provisions of Section 580a of the California Code of Civil Procedure shall have no applicability
under this Deed of -rust and the Loan Documents to which Agency is a party,
(vi) Agency hereby absolutely, unconditionally, knowingly, and expressly
waives, (i) any right of subrogation such Agency has or may have as against CIM. Borrower or
oift-10867v4 - 29 - Deed W [rnsl
(I W)II mgItm )
Description: orange,CA Document-Year.DoclD 2009,516447 Page: 29 of 41
order: 87998 Comment:
any Owner with respect to the Secured Indebtedness; (b) any right to proceed against CIM.
Borrower or any Owner or any other person or entity, now or hereafter, for contribution.
indemnity, reimbursement, or any other suretyship rights and claims, whether direct or indirect,
liquidated or contingent, whether arising under express or implied contract or by operation of'
law, which such Agency may now have or hereafter have as against CIM, Borrower or any
Owner with respect to the Secured Indebtedness; and (iii) any right to proceed or seek recourse
against or with respect to any property or asset of CIM; Borrower or any Owner,
WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET I-'ORTH IN THIS AGREEMENT. AGENCY HEREBY ABSOi.UTEi..Y,
KNOWINGLY, UNCONDITIONALLY, AND EXPRESS[-Y WAIVES AND AGRIF.ES NOT
TO ASSERT ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR
INDIRI.;CTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS
2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2825, 2839, 2845, 2848, 2849, AND
2850, CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580c, 580d.
AND 726, CALIFORNIA UNIFORM COMMERCIAL CODE SECTIONS 3116. 3118, 3119.
3419, 3605, 9504, 9505 AND 9507, AND CHAPTER 2 OF TITLE 14 OF PART 4 OF
DIVISION 3 01"ITIEE CALIFORNIA CIVIL, CODE.
(c) 1-financial Condition. Agency agrees that Agent shall have no fluty to disclose to
Agency any information which Agent may receive about CIM's, Borrower's or any Owner's
linancial condition, business operations or any other circumstances bearing on their ability to
perf''orm. except as expressly set forth herein.
49. Parking Agreement. Agency reserves the right to approve the entity that is
responsible for the day-to-day operation of the parking garage pursuant to the Operating
Agreement, which shall not be unreasonably withheld, conditioned or delayed.
1.008 ios67,1t
[Remainder of page intentionally left blank J
-30-
Description; Orange,CA Document-Year.DocID 2009.516447 Page: 30 of 41
Order: 87998 Comment;
Ikwd or Trust
oiummn ton)
The undersigned Trustor requests that a copy of any notice of an Event of Default and of
any notice of sale hereunder be mailed to Trustor at Trustor's address set forth above.
600840867
CIM:
CIMMHUNiINGTON, LLC,
a California limited liability company
By: CIM 2009 CM Portfolio, LP,
a California limited parmership,
its sole member
By: CIM 2009 CM Portfolio GP, LLC,
a California limited liability company,
its sole general partner
By: CIM Urban Real Estate Fund, L.P.,
a Delaware limited partnership,
its sole member
By: CIM Urban Fund GVabirWm�
a California li any,
its sole gen p
`Z
By:
Name: Avraham Shemesh
Title: Authorized Signatory
S-1
Description: Orange,CA Document-Fear.DociD 2009.516447 Page: 31 of 41
Order: 87996 Comment:
D=d arTrust
(Huntingtm )
CALIFORNIA ALL. -PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On September 4, 2009, before me, Lory Ann Apilado, a Notary Public, personally appeared
Avraham Shemesh, who proved to me on the basis or satisfactory evidence to be the
person(s) whose nameW is/are subscribed to the within instrument and acknowledged to me
that he/she" executed the same in his/heW4Wr authorized capacity(ies3� and that by
his/herhheir signature(s) on the instrument the person(s , or the entity upon behalf of which
the persou(+acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my ha n and of cia) seal.
13y; • La `at�l�r0
ory Ann Apit 'do, Notary FuTnic Commission # 1034030
Nolaey Public • Calltornie
Las Angeles Caw
M Ire
Comm, Ex a Jan 29 2019
++
SEAL
Description: Orange,CA Document-Xear.DoclD 2009.316447 Page: 32 of 41
Order: 87998 Comment:
REV] APPROVED:
I xe i e irector
The address of Agency is:
AGENCY:
REDEYE T AGENCY OF THE CITY
OF H BEACH
l
E�)cecu .Lrector
P- E"D V j U 50.Q
ATTEST:
Aben rVED
s
A AS Tq FOR d
A >ency G n ounsel l
i I ✓'
AYPij1ED AS TO FORM:
AgeCnccyy`.p__eci ounsel
INITIATED APPROVEll:
Deputy ExecutiveDii cctor
Redevelopment Agency of the City of Huntington Beach
Attn: Executive Director
City Hall, 2000 Main Street
Huntington Beach, CA 92648
600940867
S-2
Description: Orange,CA Document-Year.DOCID 2009.516447 Page: 33 of 41
Order: 87998 Coumaent:
Geed orlrrusi
(I-Im)tmglon)
STATE OF CALIFORNIA )
) SS
COUNTY OF_�E }
On da)V, before me, j�• Cs� , Notary Public,
personally appeared who proved to me on the basis of
satisfactory evidence to be the person* whose name(Y) Dare subscribed to the within
instrument and acknowledged to me that &skefflTay executed the same in( hyiher�"r
authorized capacity(` a), and that b}f�T1is erltheir signature(p) on the instrument the person(t), or
the entity upon behalf of which the person(,Oacted, executed the instrument.
t certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witnes 4 an ffteial seal. ar►P L. E5-PAR ZA
Commission # 1857021
[Seal] Notary Public - CalHornia i
Orange County
(, ilnature) PA Comm. fx fires Au <, 2013 ~
STATE OF CALIFORNIA )
SS
COUNTY OF
On %: �q Am9 , before me, P Ly�,5/°r3�-2�! Notary Public,
personally appeared `,)UAQ Z . Za who proved to me on the basis of
satisfactory evidence to be the person(>¢) whose name(g)Fare subscribed to the within
instrument and acknowledged to me that 4e�y executed the same in -b.i /her r
authorized capacity( ), and that by e'r their signature04 on the instrument the person( or
the entity upon behalf of which the persons acted, executed the instrument.
t certify under PENALTY OF PERJURY under the laws of the State of California that the
fioregoing paragraph is true and correct.
fitness y Ian and afficial seal.
&��S at)
{5 gnature}
600840867
P L. ESPARZA
Commission # 1857021
w Notary Public • California
Orange County
M! Comm. E res n 4 2flt3 vl
~
Description: Orange,CA Document-Year.DocID 2009,516447 Page, 34 of 41
Order: 87998 Comment:
Deed of Trust
(Huntington)
ORDER NO.: 2476008966-44
EXHIBIT A
The land referred to Is situated in the County of Orange, City of Huntington Beach, State of
California, and is described as follows:
Parcel 1:
An undivided 95.495% interest in and to:
Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California,
as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the
Office of the County Recorder of said County.
Except therefrom all that portion of said land lying below a depth of 500 feet measured
vertically from the present surface of the ground.
Except therefrom:
Parcel A:
That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los
Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of
miscellaneous maps, records of the office of the county recorder of said county, more
particularly described as follows:
Commencing at the Intersection of a line parallel with and distant 2.83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10"
East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point
of beginning; thence, along the following 10 courses and distances:
1. North 480 21' 52" West, along said parallel line, 336.83 feet;
2. North 410 38' 08" East, 14850 feet;
3. South 481 21' 52" East, 77.00 feet;
A. South 640 55' 17" East, 19.30 feet;
5. South 480 21' 52" East, 30.00 feet;
6. North 4111 38' 08" East, 182.00 feet;
7. South 48Q 21' 52" East, 275.00 feet;
8. South 410 38' 08" West, 211.58 feet;
Description: Orange,CA Document-Year.DocID 2009.516447 Page: 35 of 41
Order: 67998 Comment:
9. North 480 21' 52" West, 63.67 feet;
10, South 411 38' 08" West, 124.42 feet to the point of beginning,
Except therefrom that portion thereof lying above elevation 25.66 feet (NAVD 88).
Also except therefrom that portion thereof lying below elevation 9.00 feet (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1.18 of the
declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements,
recorded February 3, 2009 Instrument No. 2009-47214,
Parcel B:
That portion of Lot 1 of Tract No, 16406, in the City of Huntington Beach, County of Orange,
State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of miscellaneous
maps, records of the office of the county recorder of said county, more particularly described as
follows:
Commencing at the intersection of a line parallel with and distant 2,83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10"
East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence
along the following 14 courses and distances:
1. North 480 21' 52 feet, along said Parallel line, 336.83 feet;
2. North 410 38' 08" East, 1,18,50 feet to the point of beginning;
3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1;
4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet;
5. ' South 480 21' 52" East, 15.93 feet;
6. North 410 38' 08" East, 2.00 feet;
7. South 460 21' 52" East, 43.83 feet;
8, South 590 00' 03" East, 52.82 feet;
9. South 77" 09' 19" East, 21.11 feet;
10. South 480 21' 25" East, 11.25 feet;
11. South 4110 38' 08" West, 57.17 feet;
12. North 480 21' 52" West, 30.00 feet;
13. North 640 55' 17" West, 19.30 feet;
Description: Orange,CA Document- Year, DocTD 2009.516447 Page: 36 of 41
Order: 87998 Co=nent:
14. North 480 21' 52" West, 77.00 feet to the point of beginning.
Except therefrom that portion thereof lying above and between an elevation of 38.79 feet on
the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line
of said Parcel 2 (NAVD 88).
Also except therefrom that portion thereof lying below and between an elevation of 30.46 feet
on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly
line of said Parcel 2 (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1,18 of the
Declaration of Covenants, Conditions and Restrictions and Trant of Reciprocal Easements,
recorded February 3, 2009 Instrument No. 2009-47214.
Parcel 2:
A leasehold estate as created by that certain lease dated June 30, 2005 a Second Amended and
Restated Memorandum of Lease and Option to Purchase and Amendment of Ground Lease
recorded September 28, 2009 as Instrument No. 2009-511364 in the office of the County
Recorder of said County in and to:
An undivided 4.505% interest in and to:
Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California,
as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the
Office of the County Recorder of said County.
Except therefrom all that portion of said land lying below a depth of 500 feet measured
vertically from the present surface of the ground.
Except therefrom:
Parcel A:
That portion of Lot I of Tract No. 16406, in the City of Huntington Beach, County of Los
Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of
miscellaneous maps, records of the office of the county recorder of said county, more
particularly described as follows:
Commencing at the Intersection of a line parallel with and distant 2.83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10"
East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point
of beginning; thence, along the following 10 courses and distances:
1. North 48° 21' 52" West, along said parallel line, 336.83 feet;
2. North 41° 38' 08" East, 148.50 feet;
Description: Orange,CA Document- Year. DoCID 2009,516447 Page: 37 of 41
Orden: 87998 Comment:
3. South 489 21' 52" East, 77.00 feet;
4. South 640 55' 3.7" East, 19.30 feet;
5. South 480 21' 52" East, 30.00 feet;
6. North 410 38' 08" East, 182.00 feet;
7. South 480 21' 52" East, 275.00 feet;
8. South 4111 38' 08" West, 211.58 feet;
9. North 480 21' 52" West, 63.67 feet;
10. South 410 .38' 08" West, 124.42 feet to the point of beginning.
Except therefrom that portion thereof lying above elevation 25.66 feet (NAVD 88).
Also except therefrom that portion thereof lying below elevation 9.00 feet (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1.18 of the
declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements,
recorded February 3, 2009 instrument No. 2009-47214.
Parcel 8:
That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange,
State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of miscellaneous
maps, records of the office of the county recorder of said county, more particularly described as
follows;
Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 41" 37' 10"
East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence
along the following 14 courses and distances:
1. North 480 21' 52 feet, along said Parallel line, 336.83 feet;
2. North 4111 38' 08" East, 148.50 feet to the point of beginning;
3. North 489 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1;
4, North 410 37' 11" East, along said Northwesterly line, 40,75 feet;
5. South 480 21' 52" East, 15.93 feet;
6. North 410 38' 08" East, 2.00 feet;
7. South 480 21' 52" East, 43.83 feet;
Description: Orange,CA Document- Year, DoclD 2009.516447 Page: 38 of 41
Order: 67998 Comment:
8. South 59° 00' 03" East, 52.82 feet;
9. South 77° 09' 19" East, 21.11 feet;
10. South 481 21' 25" East, 11.25 feet;
11. South 410 .18' 08" West, 57.17 feet;
12. North 480 2.1' 52" West, 30.00 feet;
13. North 64° 55' 17" West, 19.30 feet;
14. North 480 21' 52" West, 77.00 feet to the point of beginning.
Except therefrom that portion thereof lying above and between an elevation of 38.79 feet on
the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line
of said Parcel 2 (NAVD 88).
Also except therefrom that portion thereof lying below and between an elevation of 30.46 feet
on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly
line of said Parcel 2 (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1.18 of the
Declaration of Covenants, Conditions and Restrictions and Trant of Reciprocal Easements,
recorded February 3, 2009 Instrument No. 2009-47214.
Parcel 3:
A.subleasehold estate as created by that certain sublease dated April 16, 2001 and amended as
of June, 2005, of which a Memorandum of Subground Lease, Option to Purchase Fee and
Agreement Containing Covenants Affecting Real Property recorded September 28, 2009 as
instrument 2009-511365, in the office of the County Recorder of said County.
An undivided 4.505% interest in and to:
Lot 1 of Tract No. 16406, In the City of Huntington Beach, County of Orange, State of California,
as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the
Office of the County Recorder of said County.
Except therefrom all that portion of said land lying below a depth of 500 feet measured
vertically from the present surface of the ground,
Except therefrom:
Parcel A:
That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los
Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of
Description: Orange,CA Document- Year, DocID 2009.516447 Page: 39 of 41
Order: 87998 Comment:
miscellaneous maps, records of the office of the county recorder of said county, more
particularly described as follows:
Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10"
East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point
of beginning; thence, along the following 10 courses and distances:
1. North 480 2 V 52" West, along said parallel line, 336,83 feet;
2. North 41° 38' 08" East, 148.50 feet;
3. South 480 21' 52" East, 77.00 feet;
4. South 640 55' 17" East, 19,30 feet;
5. South 481 21' 52" East, 30.00 feet;
6. North 41" 38' 08" East, 182,00 feet;
7. South 480 21' 52" East, 275.00 feet;
8. South 410 38' 08" West, 211.58 feet;
9. North 480 21' 52" West, 63.67 feet;
10. South 410 38' 08" West, 124.42 feet to the point of beginning.
Except therefrom that portion thereof lying above elevation 25.66 feet (NAVD 88),
Also except therefrom that portion thereof lying below elevation 9.00 feet (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1.18 of the
declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements,
recorded February 3, 2009 Instrument No. 2009-47214.
Parcel 8:
That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange,
State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of miscellaneous
maps, records of the office of the county recorder of said county, more particularly described as
follows:
Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly,
measured at right angles, from the Southwesterly line of said Lot 1 with that certain course
along the Southeasterly boundary of said Lot 1, said course being shown as North 411 37' 10"
East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence
along the following 14 courses and distances:
Description: Orange,CA Document-Year.Doc= 2009.516447 Page: 40 of 41
Order: 87998 Comment:
1. North 480 21' 52 feet, along said Parallel line, 336.83 feet;
2. North 410 38' 08" East, 148.50 feet to the point of beginning;
3. North 481 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1;
4. North 410 37' 11" East, along said Northwesterly One, 40.75 feet;
5. South 480 21' 52" East, 15.93 feet;
6. North 410 38' 08" East, 2,00 feet;
7. South 48° 21' 52" East, 43.83 feet;
8. South 591 00' 03" East, 52.82 feet;
9. South 770 09' 19" East, 2 1. 11 feet;
10. South 480 21' 25" East, 11.25 feet;
11. South 411 38' 08" West, 57.17 feet;
12. North 480 21' 52" West, 30.00 feet;
13. North 640 55' 17" West, 19.30 feet;
14. North 48" 21' 52" West, 77.00 feet to the point of beginning.
Except therefrom that portion thereof lying above and between an elevation of 38.79 feet on
the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line
of said Parcel 2 (NAVD 88).
Also except therefrom that portion thereof lying below and between an elevation of 30.46 feet
on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly
line of said Parcel 2 (NAVD 88).
Also except therefrom that portion indicated as "Components" as defined in Article 1.18 of the
Declaration of Covenants, Conditions and Restrictions and Trant of Reciprocal Easements,
recorded February 3, 2009 Instrument No. 2009.47214,
Description: Orange,CA Document- Year. DoolD 2009.516447 Page:.4I of 41
Order: 67998 Comment:
72) ---
b�
4C �,e e M'enoT ' RELEASE OF CONSTRUCTION COVENANTS
Recording Requested by and
When Recorded Return to:
CINUHuntington, LLC
10960 Wilshire Boulevard, Suite 500
Los Angeles, California 90024
Recorded in official Records, Orange County
Tom Daly, Clerk -Recorder
I1111111111111111111111111i1111111111111111iI1iI11111ililliill1111i111I1111NO FEE
200900048345410:12am 09/10/09
116 8 Al2 5
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Attention: John Given - - -
PeRELEASE OF CONSTRUCTION COVENANTS
WHEREAS, CIM/Huntington, LLC, a California limited liability company (the
"Developer") is the owner of certain real property situated in the City of Huntington
Beach, California described in Exhibit A which is attached hereto and made a part
hereof (the "Property") and has agreed to construct certain improvements thereon (the
"Improvements"), and
WHEREAS, pursuant to the Disposition and Development Agreement ("DDA")
entered into by and between the Redevelopment Agency of the City of Huntington
Beach (the "Agency") and Developer, the Agency has agreed to furnish Developer with
a Release of Construction Covenants ("Release") upon the completion of construction
and development of the Improvements, and such certificate is to be in such form as to
permit it to be recorded in the Recorder's Office of Orange County; and
WHEREAS, the DDA states that the Release shall be conclusive determination
of satisfactory completion of the construction and development of the Improvements as
required by the DDA; and
WHEREAS, the Agency has determined that the construction and development
of the Improvements on the Property as required by the DDA has been satisfactorily
completed; and
This doaxwt is solely for the c
WAkwo of the My of HuridiVim
as wnUnplaled under
Qovsn~t Ooft Sec. 6103 and
show is % reowded fame of dmqp.
RELEASE OF CONSTRUCTION COVENANTS
me
s
NOW THEREFORE, it is hereby acknowledged and agreed by the parties hereto
that:
1. The Agency does hereby certify that the construction and development of
the Improvements on the Property have been fully and satisfactorily performed and
completed as required by the DDA and that Developer has fully complied with the terms
of the DDA with respect to such construction and development, and that the right of
reverter provisions set forth in Section 4 of the Grant Deed are no longer of any force or
effect.
2. Pursuant to Section 318 of the DDA, the covenants set forth in the DDA,
the Grant Deed and the Agreement Containing Covenants for the construction of the
Improvements on the Property expire upon the recording of this Release.
IN WITNESS WHEREOF, the Agency has executed this Release this/ day
of
ATTEST:
Irk
REDEVELOPMENT AGENCY OF THE
CITY OF H TINGTON BEACH
By:
APPROVED AS TO FORM
7��Mm,�
Attorne
yL0�'!0' d�
Sr.DePuty City Attmwy
RELEASE OF CONSTRUCTION COVENANTS
-2-
CALIFORNIA•ACKNOWLEDGMENT
�5�.-�.'S�c!�. c�--�.'45.-�.'.�.-�.'.%�.'g�.�.'e�Ns�e�S�>�c,�S i%aj. S!�S .�.�.�.'.�.-, �.'S�S�e e,�4�. c-�� .�S�S�.-�.'g,�. S S .�.•�_c�.'.�S c�.�.'S�S�. g
State of California
County of J
On before me, �•/�/
Date Here Insert Name and itie of the Officer
personally appeared S6�
/4-f)ZI uZA,l)
P- L. ESPARIA
~ ` Commission #t 1857021
z '® Notary Public - California z
Orange County >
fiA Comm. E 'res A 4, 2013
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person whose name} 4 re subscribed to the
within instrument and acknowledged to me that
bel ED executed the same in-�a their uthorized
capacitl0o, and that by.. *.44e their ignature(@)on the
instrument the persor(s or the entity upon behalf of
which the person(,) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS m a an ffci7.flo6ry
6Pub�fir/
Signature
Zig.ialur
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached
Title or Type of Document: �� � O/`- LG i 1//7C•Gc�F
4v4GGsZ—
Document Date: / Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: 1i2
❑ Individual
�A Corporate Officer — Title(s): _
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
r Is Representing:
RIGHTTHumBPRINT,
_ OFSIGNER__
Top of thumb here
Signer's Name:
❑ Individual
Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
igner Is Representing:
02007 National Notary Association • 9350 De Soto Ave., PO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827
Exhibit "A"
LEGAL DESCRIPTION
Real property in the City of Huntington. Beach, County of Orange, State of California;
described as follows: .
Parcel A:.
Lots 9; 10, 12) 14, 16, 18, 20; 22, 24,.26, and 28 in Block 104 of Huntington Beach as
shown on a Map recorded in, Book 3, Page 36 of Miscellaneous Maps, records. of Orange
County, California.
Excepting therefrom the Southeasterly.2 and 5/81h inches of said Lot 9.
Also excepting therefrom all that portion of said land lying below a depth of 500 feet
measured vertically frorn the present surface of the ground..
Parcel B:
Lots 1, 2%, 3, 6 through 21 inclusive, 23, 25 and-27 in Block 105 of -Huntington Beach as
shown on a -Map recorded in Book 3, Page 36 of Miscellaneous Maps, records of Orange-.
County; California. -
Also -excepting therefrom all that portion of said land lying below a depth of 500 feet
.measured vertically from the present surface of.the.ground.
Parcel C:
Lots 4. and 5 in -Block 105 of Huntington Beach as shown on a Map recorded in Book 3,
.Page 36 of Miscellaneous Maps, records of Orange County, California.
Also excepting therefrom all that portion of said land -lying below a depth of 500 feet
-measured vertically from the present surface of the ground.
APN: 024-1.52-02 and 024-152-03 and 024-1-52-04 and 024-152-05 and 024-152-10 and
024-152-11 and 024-152-12 and 024-152-13 and 024-152-14 and 024-153-01 and 024-
153-02 and 024-153-03 and 024-153-10 and 024-153-16
KAcg\HB\C[M',Closing\Ucgal Description Parcel A-C
Lrl
SHEET . or . EASEMENT NOTE. U Imo! /U\ II T V\ O. 16406 �
(ALE Or TENTATIVE . t$' wlOE USCNFM ra0 2•' rnOC U$CuC«t �V \\11Lr�1 \\\`JJJJ UUU V �1J/`V
TRACT N0. 16♦06) FOR DAAINACE. V11UTY, PEDESTRIAN ANO VEHICULM IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA
NUMBER Or LOTS: I fVRCOscs )r—lco 10 luC -.0L,c HEPEON. 0 10 60 120 Ito
AREA - 2.955 ACRES CROSS FOR CONOOMINtVM PURPOSES
DATE OF SURVEY. IUNCN 200.E - MICHAEE SIMON, P.L.S.OfWRVS TART do ASSOCIATES. INC � SCALE: 1•-A0'
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Council/Agency Meeting Held: Fz,.3 z4AC09
Deferred/Continued to:
Opp ve ❑ Conditionally Approved ❑Denied
City rk's SX nature
Council Meeting Date: 8/3/2009
Department ID Number: 09-50
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION
SUBMITTED TO: Honorable Mayor and City Council Members/ onorable Chairman and
Redevelopment Agency Members
SUBMITTED BY: Fred A. Wilson, City Administrator/Executi r ctor
PREPARED BY: Stanley Smalewitz, Director of Economic Die opment/Deputy
Executive Director
SUBJECT: Approval of CIM Loan Documents/The Strand
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue:
CIM/Huntington, LLC ("CIM") is the developer of The Strand, located on Fifth Street and
Pacific Coast Highway. CIM is requesting approval of a six property portfolio loan financing of
approximately $145 million. The Redevelopment Agency is being asked to consent to the
developer assigning all of its rights under the Disposition and Development Agreement
(DDA) dated as of June 17, 1999, as amended by subsequent Implementation Agreements.
Funding Source: CIM will deposit $5,000 to the Agency to pay for all legal costs related
to the transfer, per the DDA.
Recommended Agency Action: Motion to:
Approve the Agreement of Parties Re: Disposition and Development Agreement and
Operating Agreement on the conditions that a Release of Construction Covenants has
been issued and recorded with the Orange County Clerk Recorder's Office in
accordance with the DDA and the City Attorney has reviewed and approved the final
loan documents and with the understanding that this approval will be deemed null and
void if the portfolio loan with Comerica Bank does not close within sixty (60) days of this
approval;
2. Approve the Deed of Trust, Security Agreement and Fixture filing with Assignment of
Rents and Leases on the condition that the City Attorney has reviewed and approved
the final loan documents (including, without limitation, the Deed of Trust) and with the
understanding that this approval will be deemed null and void if the portfolio loan with
Comerica Bank does not close within sixty (60) days of this approval; and
3. Authorize the Executive Director to execute the Agreement of Parties Re: Disposition
and Development Agreement; the loan documents to be signed by the Agency; and
such other ancillary documents and agreements as approved by the City Attorney on
the conditions that the Release of Construction Covenants has been issued and
recorded with the Orange County Clerk Recorder's Office in accordance with the DDA
and the City Attorney has reviewed and approved the final loan documents.
Recommended City Action: Motion to:
Approve the Estoppel Certificate and Agreement on the condition that the Release of
Construction Covenants has been issued and recorded with the Orange County Clerk
Recorder's Office in accordance with the DDA and with the understanding that this
approval will be deemed null and void if the portfolio loan with Comerica Bank does not
close within sixty (60) days of this approval;
2. Approve the Agreement of Parties Re: Disposition and Development Agreement and
Operating Agreement on the conditions that a Release of Construction Covenants has
been issued and recorded with the Orange County Clerk Recorder's Office in
accordance with the DDA and the City Attorney has reviewed and approved the final
loan documents and with the understanding that this approval will be deemed null and
void if the portfolio loan with Comerica Bank does not close within sixty (60) days of this
approval;
3. Approve the Deed of Trust, Security Agreement and Fixture Filing with Assignment of
Rents and Leases on the condition that the City Attorney has reviewed and approved
the final loan documents (including, without limitation, the Deed of Trust) and with the
understanding that this approval will be deemed null and void if the portfolio loan with
Comerica Bank does not close within sixty (60) days of this approval; and
4. Authorize the City Administrator to execute the Agreement of Parties Re: Disposition
and Development Agreement and Operating Agreement; the loan documents to be
signed by the City; and such other ancillary documents and agreements as approved by
the City Attorney on the conditions that the Release of Construction Covenants has
been issued and recorded with the Orange County Clerk Recorder's Office in
accordance with the DDA and the City Attorney has reviewed and approved the final
loan documents.
Alternative Action(s):
Do not consent to the transfer of CIM's rights under the DDA and direct staff to re -negotiate
the terms.
REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION
MEETING DATE: 8/3/2009 DEPARTMENT ID NUMBER: 09-50
Analysis:
The Redevelopment Agency is a party to a Disposition and Development Agreement (DDA)
dated as of June 17, 1999, with CIM/Huntington LLC (CIM) as amended by (i) an
Implementation Agreement executed on April 6, 2000, (ii) a Second Implementation
Agreement dated as of March 5, 2001, (iii) a Third Implementation Agreement dated as of
October 30, 2002, (iv) a Fourth Implementation Agreement dated as of September 15, 2003,
(v) a Fifth Implementation Agreement dated as of July 19, 2004, and (vi) a sixth
Implementation Agreement dated as of November 3, 2008 (collectively, the "DDA") for the
redevelopment of several parcels in downtown Huntington Beach. The DDA sets forth a
mixed use development consisting of retail, restaurant and hotel uses. The site has been
developed and the Shorebreak Hotel and several stores have opened. The parking garage
is owned by the City by virtue of an amended and restated Grant Deed recorded on July 17,
2009.
CIM did not undertake any loans on the property for the construction of the development.
CIM is now requesting that the Agency and City approve a portfolio loan with a collateral
structure of six (6) properties with Comerica Bank for a total amount of $145 million. The
$145 million is estimated to be approximately 50% of the forecasted, stabilized combined
values of the six projects. The term of the loan is for 36 months with one 12 month
extension. The properties that will be cross collaterized with The Strand are:
West Hollywood, 901 Hancock (.95 acre) — Mixed use: Retail / 31 Condominium, 7
Affordable rental/Public Parking. Completed June, 2009.
• San Jose, the Globe (.65 acres) — Mixed Use: 17,500 sf of Retail/76 Rental/Public
Parking. Completed 2007.
• Sacramento, 800J (1.17 acres)-20,000 sf of Retail/225 Apartments, including 45
affordable. Completed in 2006.
• Anaheim, Harbor Lofts: (.35 acre) — 13,100 sf of Retail/ 1298 Residential. Completed
2007-2009.
• Los Angeles 12 acres — Two phase Retail/Transportation — Metro station and 18,000
sf retail opened in 2007. Phase II (10 acres) planned for 350,000 sf two story big
box development, construction start pending.
As a result of the structure of the portfolio loan, all six properties will be owned by a single
entity of CIM 2009 Portfolio LP, a California limited partnership. All payments by the
Agency/City owed to CIM/Huntington LLC under the DDA and Operating Agreement will
instead be paid to an account maintained by CIM to which Comerica has a security interest,
including shared parking revenue and the yearly feasibility gap payments.
Under the terms of the DDA, the Agency and CIM agreed to cooperate to complete the
assemblage of the project site through the acquisition or incorporation of the privately owned
parcel. CIM negotiated a ground lease with an option to purchase a small portion of the site
from Mr. Frank Cracchiolo. In order to ensure the Agency's support for the project in the
event CIM never built the project, Mr. Cracchiolo required that the Agency be the tenant to
-2- 7/28/2009 9:50 AM
REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION
MEETING DATE: 8/3/2009 DEPARTMENT ID NUMBER: 09-50
the ground lease with the understanding that the Agency would sublease its interest to CIM.
The ground lease was an effective way to assemble the site and provided the Agency with
additional control over the entire development site. CIM is solely responsible for the
obligations under the ground lease. The proposed financing encumbers the ground lease.
By approving the Deed of Trust, the Agency is agreeing to permit the Agency's leasehold
interest to be used as security for the portfolio.
Strategic Plan Goal:
Enhance Economic Development.
Environmental Status: Not Applicable
Attachment(s):
-3- 7/28/2009 9:50 AM
RCA ROUTING SHEET
INITIATING DEPARTMENT:
Economic Development
SUBJECT:
Approval of CIM Loan Documents/The Strand
COUNCIL MEETING DATE:
August 3, 2009
RCA ATTACHMENTS
STATUS
Ordinance (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not Applicable
Contract/Agreement (w/exhibits if applicable)
Attached
❑
Signed in full by the City Attorney
Not Applicable
Subleases, Third Party Agreements, etc.
Attached
(Approved as to form by City Attorney)
Not Applicable
❑
Certificates of Insurance (Approved by the City Attorney)
Attached
❑
Not Applicable
Fiscal Impact Statement (Unbudgeted, over $5,000)
Attached
❑
Not A plicable
Bonds (If applicable)
Attached
❑
Not Applicable
Staff Report (If applicable)
Attached
❑
Not Applicable
Commission, Board or Committee Report (If applicable)
Attached
❑
Not Applicable
Findings/Conditions for Approval and/or Denial
Attached
❑
Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS'
RCA Author: Fritzal 1519